An aerial view of the AT&T Easylink Service building in Bridgeton, Missouri, where the NSA allegedly has secret facilities. [Source: USGS via Microsoft]On behalf of the National Security Agency (NSA), AT&T constructs a secret, highly secured room in its network operations center in Bridgeton, Missouri, used to conduct secret government wiretapping operations. This is a larger and more elaborate “data mining” center than the one AT&T has constructed in San Francisco (see January 2003). Salon’s Kim Zetter will later write that the Bridgeton facility “had the earmarks of a National Security Agency operation,” including a sophisticated “mantrap” entrance using retinal and fingerprint scanners. Sometime in early 2003, AT&T technician Mark Klein (see July 7, 2009) discusses the Bridgeton facility with a senior AT&T manager, whom he will only identify as “Morgan.” The manager tells Klein that he considers the Bridgeton facility “creepy,” very secretive and with access restricted to only a few personnel. Morgan tells Klein that the secure room at Bridgeton features a logo on the door, which Klein will describe as “the eye-on-the-pyramid logo which is on the back of the dollar bill—and that got my attention because I knew that was for awhile the logo of the Total Awareness Program” (TIA-see Mid-January 2002, March 2002 and November 9, 2002). Klein notes that the logo “became such a laughingstock that they [the US government] withdrew it.” However, neither Klein nor Morgan find the NSA secure room at Bridgeton amusing. In June 2006, two AT&T workers will tell Zetter that the 100 or so employees who work in the room are “monitoring network traffic” for “a government agency,” later determined to be the NSA. Only government officials or AT&T employees with top-secret security clearance are admitted to the room, which is secured with a biometric “mantrap” or highly sophisticated double door, secured with retinal and fingerprint scanners. The few AT&T employees allowed into the room have undergone exhaustive security clearance procedures. “It was very hush-hush,” one of the AT&T workers will recall. “We were told there was going to be some government personnel working in that room. We were told: ‘Do not try to speak to them. Do not hamper their work. Do not impede anything that they’re doing.’” (Neither of Zetter’s sources is Klein, who by the time Zetter’s article is published in 2006, will have made his concerns about the NSA and AT&T public.) The Bridgeton facility is the central “command center” for AT&T’s management of all routers and circuits carrying domestic and international Internet traffic. Hence, it is the ideal location for conducting surveillance or collecting data. AT&T controls about a third of all bandwidth carrying Internet traffic to and from homes and businesses throughout the US. The two employees, who both will leave AT&T to work with other telecommunications firms, will say they cannot be sure what kinds of activities actually take place within the secret room. The allegations follow those made by Klein, who after his retirement (see May 2004) will submit an affidavit stating his knowledge of other, similar facilities in San Francisco and other West Coast switching centers, whose construction and operations were overseen by the NSA (see January 16, 2004 and January 2003); the two AT&T employees say that the orders for the San Francisco facility came from Bridgeton. NSA expert Matthew Aid will say of the Bridgeton facility, “I’m not a betting man, but if I had to plunk $100 down, I’d say it’s safe that it’s NSA.” Aid will say the Bridgeton facility is most likely part of “what is obviously a much larger operation, or series of interrelated operations” combining foreign intelligence gathering with domestic eavesdropping and data collection. Former high-level NSA intelligence officer Russell Tice will say bluntly: “You’re talking about a backbone for computer communications, and that’s NSA.… Whatever is happening there with the security you’re talking about is a whole lot more closely held than what’s going on with the Klein case.” The kind of vetting that the Bridgeton AT&T employees underwent points to the NSA, both Aid and Tice will say; one of the two AT&T employees who will reveal the existence of the Bridgeton facility will add, “Although they work for AT&T, they’re actually doing a job for the government.” Aid will add that, while it is possible that the Bridgeton facility is actually a center for legal FBI operations, it is unlikely due to the stringent security safeguards in place: “The FBI, which is probably the least technical agency in the US government, doesn’t use mantraps. But virtually every area of the NSA’s buildings that contain sensitive operations require you to go through a mantrap with retinal and fingerprint scanners. All of the sensitive offices in NSA buildings have them.” The American Civil Liberties Union’s Jameel Jaffer will add that when the FBI wants information from a telecom such as AT&T, it would merely show up at the firm with a warrant and have a wiretap placed. And both the NSA and FBI can legally, with warrants, tap into communications data using existing technological infrastructure, without the need for such sophisticated surveillance and data-mining facilities as the ones in Bridgeton and San Francisco. Both AT&T and the NSA will refuse to comment on the facilities in Bridgeton, citing national security concerns. [Salon, 6/21/2006; Klein, 2009, pp. 28-30]

Assistant Attorney General William Moschella informs the ranking members of the House and Senate Intelligence committees of the administration’s use of potentially unconstitutional data mining and electronic surveillance programs after the 9/11 attacks. Moschella tells the lawmakers, “The president determined that it was necessary following September 11 to create an early-warning detection system” to prevent more attacks. One such program is the Novel Intelligence from Massive Data (NIMD) initiative (see After September 11, 2001). Moschella echoes the claims of National Security Agency director Michael Hayden and other administration officials, saying that the Foreign Intelligence Surveillance Act (FISA), which allows the government to obtain warrants to conduct domestic eavesdropping or wiretapping, “could not have provided the speed and agility required for the early-warning detection system.” [National Journal, 1/20/2006]Domestic Surveillance Began Before 9/11? - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002). Moschella informs the lawmakers of none of this.

District Court Judge John Bates rules against the General Accounting Office (GAO), the investigative arm of Congress, in its attempt to force Vice President Cheney to disclose some of his Energy Task Force documents (see January 29, 2001 and May 16, 2001). The judge writes, “This case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.” [Associated Press, 12/9/2002] Bates is a Republican who worked as the deputy independent counsel to Kenneth Starr in the Whitewater investigation, and was appointed to the bench by President Bush in 2001. [Savage, 2007, pp. 112] The GAO later declines to appeal the ruling (see February 7, 2003). In a similar suit being filed by Judicial Watch and the Sierra Club, the Bush administration has successfully delayed deadlines forcing these documents to be turned over. [Associated Press, 12/6/2002] That case will eventually be decided in the administration’s favor (see May 10, 2005). Cheney Pushes Back - Unfortunately, the ruling’s claim of no Congressional involvement is somewhat misleading. The original request for information came from two ranking House members, Henry Waxman (D-CA) of the Committee on Government Reform and John Conyers (D-MI) of the Energy and Commerce Committee (see April 19 - May 4, 2001). Waxman and Conyers followed standard procedure by writing to David Walker, head of the GAO, to request information about who was meeting with the task force and what the task force was doing (May 8, 2001. Instead of complying with the request, Cheney’s legal counsel, David Addington, replied that the task force was not subject to the Federal Advisory Committee Act, and therefore not bound by law to provide such information (see May 16 - 17, 2001). Addington later challenged the GAO’s authority, saying that it was trying “to intrude into the heart of Executive deliberations, including deliberations among the President, the Vice President, members of the President’s Cabinet, and the President’s immediate assistants, which the law protects to ensure the candor in Executive deliberation necessary to effective government.” The GAO was not asking for such information; former Nixon White House counsel John Dean will write in 2004, “It was clear [Addington] was looking to pick a fight.” Tug of War - The GAO advised Addington that it did indeed have the legal power to examine the deliberations of such entities as the task force, and provided Addington both the statutory law and the legislative history, which flatly contradicted Addington’s refusal. The GAO also noted that it was “not inquiring into the deliberative process but [was] focused on gathering factual information regarding the process of developing President Bush’s National Energy Policy.” The GAO even narrowed the scope of its original request, asking only for the names of those who had worked with the task force, and the dates (see July 31, 2001). But this provoked further resistance from Cheney and his office, with Cheney publicly stating on numerous occasions that the GAO was unlawfully trying to intrude into the deliberative process. Walker’s patience ran out in January 2002, and he notified the White House and Congress that the GAO was taking the administration to court (see February 22, 2002). Hardball in Federal Court - Usually the case will be handled by lawyers from the Justice Department’s Civil Division. But this case is much more important to the White House to be left to the usual group of attorneys. Instead, this lawsuit is one of the very few to be handled by a special unit operating under the direct supervision of Deputy Solicitor General Paul Clement and Clement’s boss, Solicitor General Theodore Olson. Olson, the lawyer who spearheaded the team that successfully argued the December 2000 Bush v. Gore case that awarded George W. Bush the presidency. Dean later learns that this special team was created specifically to find and handle cases that they can take to the Supreme Court in order to rewrite existing law, mostly laws that restrict the power of the presidency (see January 21, 2001). Many career attorneys at the Justice Department will become so offended by the existence and the agenda of this special legal team that they will resign their positions. The administraton sent a strong signal to Judge Bates when it sent Olson, who has argued many times before the Supreme Court, to argue the government’s case in his court. Dean will write that Bates, a recent Bush appointee and a veteran of the Whitewater investigation, “got the message.” He knows this case is slated to go to the Supreme Court if it doesn’t go the way the White House wants. Standing the Law On Its Head - According to Dean, Bates turns the entire body of statutory law overseeing the GAO and its powers to compel information from the executive branch on its head. He rules that the GAO lacks the “standing to sue,” saying that it doesn’t have enough of a legal stake in the controversy to have a role in trying to compel information. Bates, flying in the face of over eight decades of law and precedent, rules that, in essence, the GAO is merely an agent of Congress, and because neither the GAO nor Walker had suffered injury because of the task force’s refusal to comply with its request, the GAO has no legal recourse against the executive branch. Bates hangs much of his ruling on the fact that Congress has not yet subpoenaed the White House for the task force information. Thusly, Bates guts the entire structure of enforcement authority the GAO has as part of its statutory mandate. Bates does not go as far as the Justice Department wants, by not specifically ruling that the entire GAO statute is unconstitutional, but otherwise Bates’s ruling is a complete victory for the White House. [Dean, 2004, pp. 76-80] Authors Lou Dubose and Jake Bernstein later write that “Bates’s ruling creates a legislative Catch-22 for Democrats.” Because the GOP is the majority party, and because GOP Congressional leaders refuse to subpoena the White House on virtually any issue or conflict, no such subpoenas as Bates is mandating are likely to ever be granted by Republican committee chairmen. [Dubose and Bernstein, 2006, pp. 14] In 2007, author and reporter Charlie Savage will write that Bates’s ruling severely eroded the GAO’s “ability to threaten to file a lawsuit [and] damaged the congressional watchdog’s capability to persuade executive branch agencies to comply with its requests for information.… Bates had established a principle that, if left undisturbed, could change the attitudes of executive branch officials when the GAO asked for documents they did not want to disclose.” [Savage, 2007, pp. 112-113]

Vice President Dick Cheney unilaterally exempts his office from Executive Order 12958, which established government-wide procedures for safeguarding classified national security information. [White House, 4/17/1995; Congress Committee On Oversight And Government Reform, 6/21/2007] It was amended by President Bush’s Executive Order 13292 (see March 25, 2003) to require that all agencies or “any other entity within the executive branch that comes into the possession of classified information” regularly report on their activities to the Information Security Oversight Office. [White House, 3/25/2003]Vice President Not Part of Executive Branch, Cheney Argues - Cheney’s argument is that the vice president’s office is not part of the executive branch, and therefore has no legal obligation to report on its classification decisions as mandated by the order. Cheney justifies his position by noting that the vice president has a role in both the executive and legislative branches—the vice president is also president of the Senate—and the vice president’s office is not an agency. In May 2006, Cheney spokeswoman Lea Anne McBride will say, “This has been thoroughly reviewed and it’s been determined that the reporting requirement does not apply to [the office of the vice president], which has both legislative and executive functions.” (McBride does not say who reviewed the claim.) Criticism - Others, such as government secrecy expert Steven Aftergood of the Federation of American Scientists, disagree. “It undermines oversight of the classification system and reveals a disdain for presidential authority,” he says. “It’s part of a larger picture of disrespect that this vice president has shown for the norms of oversight and accountability.” Around 80 agencies and entities must report annually to the National Archives; besides the Office of the Vice President, only the president’s Homeland Security Council and the president’s Foreign Intelligence Advisory Board have as yet failed to report on their activities. Aftergood will say: “Somebody made a decision that they don’t want to do what they used to do.… They have to explain why they stopped doing it, and they haven’t done that.” [ABC News, 6/21/2007] Law professor Garrett Epps observes: “The vice president is saying he doesn’t have to follow the orders of the president. That’s a very interesting proposition.” And Judicial Watch’s Paul Orfanedes says Cheney’s claim “seems most disingenuous.” [Cox News Service, 6/21/2007]Retaliation For Attempt To Force Compliance - The National Archives’ Information Security Oversight Office (ISOO) will attempt in 2004 to conduct an inspection of Cheney’s offices pursuant to the executive order; Cheney’s staff will block the inspection, the first time since the ISOO’s inception in 1978 that one of its inspections has been thwarted. The National Archives will protest Cheney’s decision (see June 8, 2006 and January 9, 2007); Cheney will respond by attempting to abolish the ISOO (see May 29, 2007-June 7, 2007). [Henry A. Waxman, 6/21/2007 ; ABC News, 6/21/2007] In June 2007, President Bush will announce that he never intended for either his or Cheney’s office to have to comply with the directive. [USA Today, 6/24/2007; Newsweek, 12/27/2007]Issue Nothing More Than 'Kerfuffle' - In December 2007, Cheney will call the entire issue a “kerfuffle… is he or isn’t he; is he part of the executive branch, part of the legislative branch? And the answer really is, you’ve got a foot in both camps. I obviously work for the president. That’s why I’m sitting here in the West Wing of the White House. But I also have a role to play in the Congress as the president of the Senate. I actually get paid—that’s where my paycheck comes from, is the Senate. So I try to keep lines open to both sides of the Congress, both the House and the Senate.” [White House, 12/6/2007] However, Cheney sometimes asserts executive privilege, a function of the executive branch (see June 26, 2007 and June 29, 2007).

An internal audit shows that the cutting-edge electronic surveillance system, DCSNet (see 1997-August 2007 and After), is unacceptably vulnerable to hacking and exploitation. The audit finds numerous security vulnerabilities, including the allowing of multiple and shared logins, a lack of firewall and antivirus software, and Windows-based vulnerabilities surrounding the operating system’s administrative functions. Steven Bellovin, a computer science professor and surveillance expert, says the risks from insiders are particularly worrisome. “The underlying problem isn’t so much the weaknesses here, as the FBI attitude towards security,” he says. The FBI assumes “the threat is from the outside, not the inside,” and believes that “to the extent that inside threats exist, they can be controlled by process rather than technology.” He considers the entire system at risk both from insiders and hackers from outside. “Any time something is tappable there is a risk,” Bellovin says. “I’m not saying, ‘Don’t do wiretaps,’ but when you start designing a system to be wiretappable, you start to create a new vulnerability. A wiretap is, by definition, a vulnerability from the point of the third party. The question is, can you control it?” [Wired News, 8/29/2007]

The NSA’s secret room in the AT&T switching center. [Source: PBS]Veteran AT&T technician Mark Klein (see July 7, 2009) takes an informal tour of his company’s facility on San Francisco’s Folsom Street (see Late 2002), along with three other technicians from his Geary Street offices. The tour, Klein will later say, is to introduce the four technicians to the Folsom Street staff, “because they were obviously eventually planning to bring us over there.” Klein learns that the rumors of a “secret room” in the facility are true (see Fall 2002). The secret room is on the facility’s sixth floor and is being built to house some sort of equipment, but Klein is unsure exactly what that equipment might be. Klein and the others see the outer door of the secret room, and a workman working on the door “suddenly [began talking to Klein and his colleages in a] very low voice like he didn’t want to be overheard. He felt like this was something secret, you know, and he didn’t know much about it, and he was saying: ‘None of us can go in there. It’s all secret.’ This was not only an affront to the technicians; it was a violation of union rules, because they were obviously planning to install telecommunications equipment, which is supposed to be the jurisdiction of the union technicians. We had a contract. So the technicians were not only angry about this secret thing that they’re not let in on, but also the fact that there’s work there that they’re excluded from. And they were told nothing about it. So that was it.” Klein is further surprised to learn that only a single non-union technician (whom he only identifies as “Ski,” an AT&T “field support specialist” who has been granted a security clearance by the National Security Agency (NSA)), is allowed to work in the secure room. No union technicians are allowed in, even though the installation work being done is specifically contracted to the union workers. “The regular technician work force was not allowed in the room,” Klein will later state. Klein deduces that this secret room is the long-rumored NSA installation he has been hearing about. Moreover, he notes with some alarm that the room is next door to the 4ESS phone switch, “the traditional workhorse used for AT&T long-distance calls.” Klein will write, “Now my mental alarm bells were ringing, but for the moment there was nothing to do but take some mental notes, particularly since it was not clear exactly what they [the NSA and AT&T] were doing.” [Wired News, 4/7/2006; Democracy Now!, 5/12/2006; PBS Frontline, 5/15/2007; Klein, 2009, pp. 26-28] Klein will explain that he chooses not to say anything about his concerns because he is “scared for several reasons, one being, well, this is obviously secret. This is obviously some federal government secret operation that they don’t want nosy people nosing around in, and if I started asking questions I could get into trouble. Furthermore, our jobs were in jeopardy anyway, because [we] were always getting wind that they were planning to close our previous office at Geary Street, and I didn’t need to give them an excuse to fire me. So I thought after thinking about it that the best thing to do is not to say anything and just watch it.” [PBS Frontline, 5/15/2007] He later learns that similar cabinets are being installed in AT&T centers in other cities, including Seattle, San Jose, Los Angeles, and San Diego (see Late 2003). [Wired News, 4/7/2006] The Folsom Street facility is apparently connected to a more central surveillance facility operated out of one of AT&T’s main command centers in Missouri (see Late 2002-Early 2003).

Michael Ashcroft. [Source: Conservative Home Blogs.com]Former Drug Enforcement Administration analyst Jonathan Randel is sentenced to a year in prison on felony theft charges surrounding his passing of DEA information to Toby Follett, a London Times investigative reporter. Randel’s prosecution is unusual because he passed unclassified information to the reporter, and none of his actions threatened national security. The prosecutor of Randel’s case says flatly that Randel was taken to court to discourage other government employees from cooperating with the press. Additionally, there is wide speculation that Randel’s prosecution may have something to do with the target of Follett’s investigation, Lord Michael Ashcroft. Ashcroft (no relation to Attorney General John Ashcroft) was under investigation by the DEA because of his ownership of a bank in Belize that was a known outlet for laundered drug money. Randel provided Follett with information that was not classified, but was categorized as “sensitive.” Times editor Robert Thomson says that Randel’s prosecution is distressing because “[c]onfidential information is passed to journalists every day.” However, Justice Department prosecutor William Duffey, a former deputy independent counsel under Whitewater independent counsel Kenneth Starr, says that Randel’s prosecution was designed to warn other government workers of the dangers of cooperating with the media. 'Particularly Alarming' - Lucy Dalglish, head of the Reporters Committee for Freedom of the Press, says, “What is particularly alarming is that this is not classified information and is probably disclosable under the Freedom of Information Act. This is the kind of thing that journalists ask for every day.” She says that other, similar actions by other public employees have been addressed with reprimands and letters in their personnel files. “But jail?” she asks. Former Nixon White House counsel John Dean writes in 2004, “Clearly this was a warning aimed at potential whistleblowers in the federal bureaucracy, advising them to keep quiet, or risk jail.” [New York Times, 1/16/2003; Dean, 2004, pp. 67-69]No Precedent - Neither Duffey nor anyone in the DEA can cite any other cases where the government has prosecuted an employee for leaking confidential but unclassified information. Lawyer Kevin Goldberg, legal counsel for the American Society of Newspaper Editors, says that such a prosecution is rare in the extreme. If such a broad standard were applied to other whistleblowers, then charges could well be brought against FBI agent Coleen Rowley, whose revelations of FBI mismanagement and obduracy before the 9/11 attacks earned her a citation as one of Time Magazine’s “Persons of the Year.” Journalism professor Catherine Manegold calls Randel’s prosecution “not too different from McCarthyism.… If we are confined to official, pre-vetted statements, that’s a terribly dangerous place to be.” [Fulton County Daily Report, 1/15/2003]Protecting Lord Ashcroft - Dean will say that the Justice Department’s prosecution of Randel was extraordinary, writing that the Department “threw the book at him.” It filed a twenty-count indictment against Randel, including 16 separate charges for each time Randel used a DEA computer to locate information on Ashcroft, and characterizing each computer usage as a separate scheme to “defraud” the US government. If convicted of all charges and given the maximum possible sentence, Randel would have faced up to 580 years in prison—a prime reason, Dean believes, that Randel accepted a plea bargain to a single charge of felony theft. According to Dean, Randel strongly believes that the Justice Department prosecuted him to protect Ashcroft, a wealthy Conservative lord living in the United States. [Dean, 2004, pp. 67-69] According to his attorney, Steven Sadow, Randel thinks “Ashcroft was getting a free ride for crooked activities. That’s why he did what he did.” Ashcroft has filed a lawsuit for defamation of character against the Times over its charges that he was involved in drug trafficking and money laundering; the Times’s owner, Rupert Murdoch, settled the case by printing a front-page apology to Ashcroft (see December 8, 1999). [Fulton County Daily Report, 1/15/2003] Ashcroft is also being probed over his potentially illegal dealings with the US toy manufacturer Tyco, and is suspected of participating in racketeering, securities fraud, tax fraud, and/or falsification of records. [Dean, 2004, pp. 67-69]

US Attorney Kevin Ryan of the Northern District of California (see August 2, 2002) undergoes his first Evaluation and Review Staff (EARS) performance evaluation, as mandated by the Justice Department. The final report states that “the overall evaluation was positive,” and that Ryan is “dedicated to the effective management of the office and to the priorities of the attorney general.” The report calls him an effective leader, and says that the area “judiciary was favorably impressed with the new United States Attorney.” [US Department of Justice, Office of the Inspector General, 9/29/2008] A follow-up letter indicates that Ryan’s office received a slightly higher-than-average cumulative assessment score in comparison to US Attorneys’ offices nationwide. The office was singled out for success in implementing the Project Safe Neighborhoods (PSN) initiative, designed to reduce gun violence in districts, and its work in combating corporate fraud. [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Daniel Bogden, the US Attorney for Nevada (see November 2, 2001), undergoes an Evaluation and Review Staff (EARS) performance review undertaken by the Justice Department. Bogden does quite well. His evaluation states in part: “United States Attorney Bogden and his supervisory [staff] were well respected by the USAO [US Attorney’s] staff, the investigative and client agencies, and the judiciary.… The senior management team appropriately managed the department’s criminal and civil priority programs and initiatives.… Bogden was highly regarded by the federal judiciary, the law enforcement and civil client agencies, and the staff of the USAO. He was a capable leader of the USAO. He was actively involved in the day-to-day management of the USAO.” [US Department of Justice, Office of the Inspector General, 9/29/2008] The March 2006 evaluation of Bogden and his office indicates that the first performance review was conducted during the first week of March 2003, not February 2003. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ] In August 2003, Bogden will receive a summative of the EARS report from the Executive Office for US Attorneys. His office will score higher than average on the cumulative ratings, and Bogden will be praised for the work he does with the department’s anti-terrorism task force and his evident skill at managing his office. [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Steven Aftergood of the Federation of American Scientists says that he is not sure that Congress’s public termination of the Total Information Awareness (TIA) project (see January 23, 2003) was as real and outrage-driven as it seemed at the time. “The whole congressional action looks like a shell game,” Aftergood says. “There may be enough of a difference for them to claim TIA was terminated while for all practical purposes the identical work is continuing.” While Congress terminated TIA with visible indignation, it also quietly funded the “National Foreign Intelligence Program,” and never identified which intelligence agency would do the work—which was also kept from the public eye. Congress did say that none of the research would be used against US citizens. No one in Congress will discuss how many of Poindexter’s programs survived, but knowledgeable sources will confirm that some 18 data-mining programs known as Evidence Extraction and Link Discovery in Poindexter’s research were preserved after TIA’s termination. These programs may well include the sprawling data mining program known as Novel Intelligence from Massive Data (NIMD) (see After September 11, 2001), though this cannot be confirmed. Former TIA chief John Poindexter’s vision of the technology behind NIMD envisioned software that can quickly analyze “multiple petabytes” of data. A single petabyte would fill the Library of Congress space for 18 million books more than 50 times, or could hold 40 pages of text for each of the more than 6.2 billion humans on Earth. Poindexter and his colleagues envisioned the program as handling a petabyte or more of data a month. [Associated Press, 2/23/2004] Concerns about the privacy rights of US citizens being damaged by the program are rife. “If they were to stick to strictly military-related research and development, there is less of an issue, but these technologies have much broader social implications,” says Barbara Simons, a computer scientist who is past president of the Association of Computing Machinery, an organization that has expressed concerns about TIA. [New York Times, 5/21/2003] At least one Senator is uncomfortable with the apparent resurgence of TIA. Jay Rockefeller (D-WV) will write Vice President Dick Cheney in June 2003 after receiving a briefing on the various secret surveillance programs (see July 17, 2003). Rockefeller will write, “As I reflected on the meeting today, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance.” [National Journal, 1/20/2006]

Republican lobbyist Jack Abramoff sends an email to White House aide Susan Ralston, a former Abramoff associate who now works in the White House Office of Political Affairs (OPA) under Karl Rove. Abramoff wants Ralston to tell Rove to covertly use his position in the White House to prevent a Louisiana Indian tribe from acquiring land for a casino. (The land acquisition would threaten the interests of an Abramoff client, a different Indian tribe that already has gaming establishments in the area.) Abramoff asks if Rove can give “some quiet message from the WH [White House] that this is absurd.” Ralston agrees, and Abramoff sends her a thank-you reply. But instead of sending the reply to Ralston’s private email account administered by the Republican National Committee (RNC) at sralston@georgewbush.com, he sends it to her official White House email account. The next day, Abramoff’s colleague Kevin Ring alerts Abramoff to the error. Ring writes, “She said it is better to not put this stuff in writing in their email system because it might actually limit what they can do to help us, especially since there could be lawsuits, etc.” Abramoff responds: “Dammit. It was sent to Susan on her rnc [Republican National Committee] pager and was not supposed to go into the WH system.” The email will be publicly revealed as part of a Congressional investigation into Abramoff’s criminal enterprises. In 2007, documents will connect this email exchange to thousands of other private emails sent to and from White House officials using the georgewbush.com, gwb43.com, rnchq.com, and other private email domains. Ralston is one of many White House officials to use these outside accounts to communicate with Abramoff and others. Federal law requires that all emails and other communications be preserved as part of the National Archives data storage, for future review. Using private email accounts such as those provided by the RNC, especially for official (and quasi-official) government business, is also a violation of the Presidential Records Law. In March 2007, the House Oversight Committee’s chairman, Henry Waxman (D-CA), will demand that the RNC preserve all White House emails “because of their potential relevance to Congressional investigations.… The email exchanges reviewed by the committee provide evidence that in some instances, White House officials were using the nongovernmental accounts specifically to avoid creating a record of the communications.” Steven Aftergood of the Federation of American Scientists will say that the use of the RNC email accounts also “shows how closely intertwined the White House is with its partisan allies. The fact that the White House and the RNC are working hand in hand and White House officials are using RNC emails is itself remarkable.” Aftergood recalls the Iran-Contra investigation, where incriminating White House emails were recovered even after officials believed they had been deleted. “People may have learned that lesson,” Aftergood will muse. Since the Iran-Contra investigation, both the first Bush administration and Clinton administration have had issues with suppressing and hiding emails. Steven Hensen, a past president of the Society of American Archivists, will say that the current Bush email practice “clearly looks like an attempt to conceal official business.” Mother Jones reporter Daniel Schulman will agree, writing that “it’s clear that others are taking pains to use alternate email accounts simply to keep their communications from becoming public record.” [Mother Jones, 3/30/2007; Los Angeles Times, 4/9/2007]

The Office of Legal Counsel (OLC)‘s John Yoo sends a secret memo to the chief counsel of the Defense Department, William Haynes. The contents remain secret, but the American Civil Liberties Union (ACLU) will later learn that the subject of the memo is “The American Bar Association’s Task Force on Treatment of Enemy Combatants Report.” The ABA will issue a report condemning the US’s treatment of detainees in August 2004 (see August 9, 2004). [American Civil Liberties Union [PDF], 1/28/2009 ]

The General Accounting Office (GAO), the nonpartisan investigative arm of Congress, declines to appeal a case attempting to force Vice President Cheney to disclose his Energy Task Force documents (see May 16, 2001, February 22, 2002, and December 9, 2002). This ends a potentially historic showdown between the Congressional watchdog agency and the executive branch. [Los Angeles Times, 2/8/2003] It is widely believed that the suit is dropped because of pressure from the Republican Party—the suit was filed when the Democrats controlled the Senate, and this decision comes shortly after the Republicans gained control of it. [Washington Post, 2/8/2003] The head of the GAO denies the lawsuit is dropped because of Republican threats to cut his office’s budget, but US Comptroller General David Walker, who led the case, says there was one such “thinly veiled threat” last year by a lawmaker he wouldn’t identify. [Reuters, 2/25/2003] Another account has Senator Ted Stevens (R-AK) and a number of other congresspeople making the threat to Walker. [Hill, 2/19/2003] The GAO has previously indicated that accepting defeat in this case would cripple its ability to oversee the executive branch. [Washington Post, 2/8/2003] A similar suit filed by Judicial Watch and the Sierra Club continues to move forward, but will ultimately be defeated by the Supreme Court (see May 10, 2005). [Washington Post, 2/8/2003]Picking Its Battles - Walker explains that to continue the case “would require investment of significant time and resources over several years.” Later, he will say that he decided not to appeal the case for what reporter Charlie Savage will call “damage-control reasons.” Walker does not want to involve the GAO in what he fears will be perceived as a partisan conflict, and he does not want to risk further crippling the GAO’s ability to function by risking another negative ruling from a federal appeals court. “If the GAO was going to fight that legal battle,” Savage will write in explanation of Walker’s reasoning, “it was strategically unwise to use a case that involved records inside the White House itself instead of a less prominent part of the executive branch.” [Savage, 2007, pp. 113]Refusal to Appeal 'Stunning' - In 2004, former Nixon White House counsel John Dean will write that he finds the GAO’s decision not to appeal the ruling “stunning.” Walker says the GAO isn’t going to challenge the ruling because it does not materially affect the GAO’s ability to function because the “decision did not address the merits” of the GAO’s arguments. The ruling, Walker says, “has no effect on GAO’s statutory audit rights or the obligation of agencies to provide GAO with information.” Dean calls this line of reasoning “wishful thinking at its best.” Dean will ask a high-level GAO official about the reported threats from Congressional Republicans. The official will reply that the threats did not worry Walker and the GAO lawyers nearly as much as the possibility that, if the GAO were to pursue the lawsuit, then, Dean will write, “the Supreme Court could do again what it did in Bush v. Gore and make Walker v. Cheney the landmark ruling ending virtually all Congressional oversight.” But lawyers for the Congressional Research Service (CRS) say that the ruling as it stands places severe restrictions on Congressional oversight. As Dean puts it: “The GAO has lost not only standing to file a lawsuit but the leverage of the threat of filing such a lawsuit, should an executive department or agency stonewall the way Cheney did. The GAO must now simply take what the White House (and its many appendages…) volunteers. This has never before been the case. [The GAO] will see only what Bush and Cheney want it to see.” The CRS notes that the ruling “calls into question the ability of Congress to delegate investigative authority to its agents;” Dean will write that this “may be the true reason for the lawsuit and for Cheney’s actions.” [Dean, 2004, pp. 80-81]'Big Win' for Bush/Cheney - Constitutional scholar Thomas Mann of the Brookings Institution will call the ruling a “big win” for the Bush-Cheney administration, saying: “President Bush and Vice President Cheney have an extreme and relentless executive-centered conception of American government, and it plays out every day, and there are dozens of fronts in this effort to strengthen the presidency. Power naturally gravitates to the presidency in times of uncertainty. But people are going to question putting all of our trust in an unfetttered presidency.” Former Justice Department official Bruce Fein is more blunt. “Now they have a precedent that they can hold over Congress’s head,” he will say. “Like a loaded gun. Forever.” [Dubose and Bernstein, 2006, pp. 14-15]

The Senate Judiciary Committee issues an interim report titled “FISA Implementation Failures” that finds the FBI has mishandled and misused the Foreign Intelligence Surveillance Act (FISA) in its anti-terrorism measures. The report is written by Arlen Specter (R-PA), Charles Grassley (R-IA), and Patrick Leahy (D-VT). [US Congress, 2/2003] Committee chairman Orrin Hatch (R-UT) not only refused to take part in the report, he issues a letter protesting the report’s findings. Other committee members were invited to take part in drafting the report, but none did so. [Salon, 3/3/2003] Specter says just after the report is issued, “The lack of professionalism in applying the law has been scandalous. The real question is if the FBI is capable of carrying out a counterintelligence effort.” According to the report, both the FBI and the Justice Department routinely employ excessive secrecy, suffer from inadequate training, weak information analysis, and bureaucratic bottlenecks, and will stifle internal dissent to excess as part of their usage of the expanded powers provided under FISA. The report uses as a case study the instance of suspected terrorist Zacarias Moussaoui (see August 16, 2001), who stands accused of conspiring with the 9/11 hijackers. FBI officials in Washington impeded efforts by its agents in Minneapolis, most notably former FBI agent Coleen Rowley, to secure a FISA warrant that would have allowed those agents to search Moussaoui’s laptop computer and belongings before the attack. [US Congress, 2/2003; Associated Press, 2/25/2003] “September 11 might well have been prevented,” says Specter. “What are they doing now to prevent another 9/11?” Grassley adds that in closed Senate hearings, they learned that two supervisors who handled the case did not understand the basic elements of FISA, and a senior FBI attorney could not provide the legal definition of “probable cause,” a key element needed to obtain a FISA warrant. [Associated Press, 2/25/2003] “I hate to say this,” Leahy observes, “but we found that the FBI is ill-equipped” to conduct surveillance on those in the United States possibly plotting terrorist acts on behalf of foreign powers. [Salon, 3/3/2003]Lack of Cooperation from FBI, Justice Department - The report says that neither the FBI nor the Justice Department were cooperative with the Judiciary Committee in the committee’s efforts to investigate either agency’s actions under FISA, routinely delaying their responses to Congressional inquiries and sometimes ignoring them altogether. The report says that perhaps the most troubling of its findings is “the lack of accountability that has permeated the entire application procedure.” The report notes that although Congressional oversight is critical to ensure a transparent, effective usage of FISA powers (augmented under the USA Patriot Act) that do not stray from legal boundaries, such oversight has been discouraged by both the FBI and the Justice Department. [US Congress, 2/2003] The Justice Department dismisses the report as “old news.” [Patrick Leahy, 2/27/2003] Grassley says, “I can’t think of a single person being held accountable anywhere in government for what went on and what went wrong prior to Sept. 11. It seems that nobody in government makes any mistakes anymore.” [Salon, 3/3/2003]Spark for New Legislation - The three senators use the report as a springboard to introduce a bill, the “Domestic Surveillance Oversight Act,” which will allow Congress to more closely oversee oversee FBI surveillance of Americans and government surveillance of public libraries, would supervise FISA usage in criminal cases, and disclose the secret rules of the FISA court to Congress. [Associated Press, 2/25/2003] Even though all three senators support a lowering of the standards by which a FISA warrant can be issued, the American Civil Liberties Union says it supports the bill, with reservations. “There’s a lot of concern in this country that, especially with the USA PATRIOT Act, FISA has become a massive tool for secret surveillance,” says ACLU lawyer Timothy Edgar. “One way to assuage those concerns—or show that they’re true—is to have more reporting.” Edgar says that the ACLU worries about the lowering of the standards for such warrants, but as long as the bill implement. [Salon, 3/3/2003] The question of the bill becomes moot, however, as it will never make it out of committee. [US Congress - Senate Judiciary Committee, 3/2003]

The Justice Department’s Office of Legal Counsel (OLC) sends a classified memo to Attorney General John Ashcroft. The contents remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the use of information collected in the course of classified foreign intelligence activities. [American Civil Liberties Union [PDF], 1/28/2009 ] The memo may concern a just-released Senate report condemning the Justice Department’s misuse of the Foreign Intelligence Surveillance Act (see February 25, 2003).

Lawyers Wilson Brown and Jeff Almeida file a request with the Supreme Court, asking it to reconsider its landmark 1953 case, US v Reynolds (see March 9, 1953). The lawyers are representing several family members who lost fathers (and, in one case, a husband) in the airplane crash that led to the original case (see October 6, 1948). The lawyers note that the government’s original claim that the accident reports could not be released due to the inclusion of “military secrets” (see July 26, 1950) is false, as the accident reports have been declassified and examined for such secrets (see February 2000). “Indeed,” the lawyers write, “they are no more than accounts of a flight that, due to the Air Force’s negligence, went tragically awry. In telling the Court otherwise, the Air Force lied. In reliance upon that lie, the Court deprived the widows [the three original plaintiffs] of their judgments. It is for this Court, through issuance of a writ of error coram nobis and in exercise of its inherent power to remedy fraud, to put things right… United States v. Reynolds stands as a classic ‘fraud on the court,’ one that is most remarkable because it succeeded in tainting a decision of our nation’s highest tribunal.” [Siegel, 2008, pp. 249-251] On July 26, 2002, one of the plaintiffs, Judy Palya Loether, wrote in an e-mail to Brown: ”US v Reynolds has come to be a landmark case that is used by the government when it claims that documents cannot be turned over to the courts because of national security. Yet this very case is now proven, in my mind, to be based on a lie that did injury to 3 widows and 5 little children (see February 2000)… It allowed the government an area of no checks and balances (see December 11, 1951). How many times has the government used this decision, not to protect national security, but for its own purposes?” [Siegel, 2008, pp. 237-238]

The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, sends a classified memo to Deputy Attorney General James Comey. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns classified foreign intelligence activities (see February 25, 2003). [American Civil Liberties Union [PDF], 1/28/2009 ] (The ACLU has Goldsmith as the author of the memo, even though he is not nominated for the OLC slot until May 2003 [Savage, 2007, pp. 183] , and will not be confirmed for the position until five months after that (see October 6, 2003). The reason for the apparent discrepancy is not immediately discernible.)

Wilson Brown, who has filed a petition with the Supreme Court asking that it reconsider its landmark 1953 US v Reynolds case (see March 9, 1953), receives an e-mail from Alison Massagli of the White House’s Foreign Intelligence Advisory Board. Massagli, who learned of the petition from an article in the Philadelphia Inquirer, wants a copy of Brown’s petition. Brown notices that Massagli sent a copy of the e-mail to Catherine Lotrionete of the National Security Council. Brown is pleased that the case has garnered some attention. He e-mails the plaintiffs he is representing, saying, “I thought you would find it interesting that at least one arm of the Executive Branch is interested in our case.” [Siegel, 2008, pp. 257]

President Bush signs an amendment to Executive Order 12958, giving government agencies broad new powers to reclassify documents already released to the public and having them removed from the public stacks of the National Archives. Archivist Allen Weinstein later estimates that some 25,000 documents and records will be removed from public access due to Bush’s decision. The reclassification program will eventually be shut down. Weinstein will later observe: “More than one of three documents removed from the open shelves and barred to researchers should not have been tampered with. That practice, which undermined the National Archives’ basic mission to preserve the authenticity of files under our stewardship must never be repeated.” The order also makes it much easier to initially classify a document or a record, resulting in over 15 million newly classified documents by the end of 2004. [Savage, 2007, pp. 162-163] A second, separate amendment to the order gives Vice President Cheney the power to unilaterally classify and declassify information (see March 25, 2003).

President Bush signs Executive Order 13292 into effect. Innocuously titled “Further Amendment to Executive Order 12958,” and virtually ignored by the press, the order gives the vice president the power to unilaterally classify and declassify intelligence, a power heretofore reserved exclusively for the president. The order is an unprecedented expansion of the power of the vice president. Author Craig Unger will explain: “Since Cheney had scores of loyalists throughout the Pentagon, the State Department, and the National Security Council who reported to him, in operational terms, he was the man in charge of foreign policy. If Cheney wanted to keep something secret, he could classify it. If he wanted to leak information, or disinformation, to the New York Times or Washington Post, he could declassify it.” Moreover, Unger will write, the order grants “a measure of legitimacy to Cheney’s previous machinations with the national security apparatus, and in doing so it consolidate[s] the totality of his victories.” Combine the order with the disabled peer review procedures in the intelligence community, the banning of dissenting voices from critical policy deliberations and intelligence briefings, and the subversion of the National Intelligence Estimate on Iraq (see October 1, 2002), and the nation has, Unger will write, an effective vice presidential coup over the nation’s intelligence apparatus. Cheney, Defense Secretary Rumsfeld, and the administration neoconservatives now effectively run that apparatus. [White House, 3/25/2003; Unger, 2007, pp. 298-299]

President Bush signs an executive order delaying the public release of millions of government documents, citing the need to more thoroughly review them first. The government faced an April 17 deadline for declassifying millions of documents at least 25 years old. [Reuters, 3/26/2003] The order countermands a 1995 executive order by then-President Bill Clinton, who mandated that government documents over 25 years old be automatically declassified unless there was “significant doubt” as to whether their release would damage national security. [New York Times, 3/21/2003] The order also treats all material sent to American officials from foreign governments, no matter how routine, as subject to classification. It expands the ability of the CIA to shield documents from declassification, giving the director the right to unilaterally block any declassification of agency documents. And for the first time, it gives the vice president the power to classify information. The New York Times says, “Offering that power to Vice President Dick Cheney, who has shown indifference to the public’s right to know what is going on inside the executive branch, seems a particularly worrying development.” [New York Times, 3/21/2003; New York Times, 3/28/2003] Historian Anna Nelson says of the decision: “This is in context with the way this administration has done the whole bit on secrecy. They have left a skeletal process.” But Steven Aftergood of the Federation of American Scientists is less harsh in his assessment, saying, “One might have expected a more aggressive, pro-secrecy policy than this draft.” Tom Blanton of the private National Security Archive says the provision to classify information from foreign governments is far too broad: “Making all foreign government information presumptively classified means we’re lowering our openness standard to the lowest common denominator of our ostensible allies.” [New York Times, 3/21/2003]

US District Court Judge Gladys Kessler, appointed to the bench by former President Bill Clinton, rules that the Bush administration is within the law in refusing to release documents pertaining to pardons issued by Clinton to Congress (see August 21, 2001 and December 13, 2001). Judicial Watch president Tom Fitton accuses Kessler of endorsing the Bush administration’s claim of executive privilege in order to protect Clinton’s reputation. The White House hails the ruling, and spokesman Scott McClellan notes that the courts have now recognized that the privilege “applies to former, current, and future presidents.” In 2007, author and reporter Charlie Savage will write that the ruling hands “the Bush-Cheney legal team another victory in its bid to expand the White House’s power to keep its inner workings secret.” [Savage, 2007, pp. 99]

Solicitor General Theodore Olson submits a response to the request that the Supreme Court reopen the 1953 state secrets case US v Reynolds (see February 26, 2003). Olson argues that once a decision has been made, it should be respected—“the law favors finality,” he writes. More surprisingly to the plaintiffs and their lawyers, Olson argues that there was no fraud perpetuated in the original case, a position hard to defend in the face of the declassified accident reports that were the heart of that case (see February 2000 and February 26, 2003). The accident reports never contained military secrets or secret information of any kind, a claim that the Court’s 1953 decision hinged on, but Olson argues that because of the wording of the claims—releasing the reports to the original plaintiffs “might lead to disclosure” of classified information—then the old claims of protecting state secrets are still technically valid (see March 9, 1953). Olson echoes the author of the original Supreme Court opinion, Fred Vinson, by reminding the Court that “[t]he claim of privilege in this case was made in 1950, at a time in the nation’s history—during the twilight of World War II and the dawn of the Cold War—when the country, and especially the military, was uniquely sensitive to need for ‘vigorous preparation for national defense.‘… The allegations of fraud made by the petition in this case… must be viewed in that light.” The lawyer for the plaintiffs in the petition, Wilson Brown, is both angered and impressed by what he calls Olson’s “remarkable obfuscation.” By hiding behind the vague wording of the original claims of state secrets, Olson is implying that this case must turn on factual issues—and therefore should be heard in a lower court, not the Supreme Court. Brown, in his response co-written by colleague Jeff Almeida, calls Olson’s arguments “disingenuous” and insists that the plaintiffs’ original case “had been vitiated through fraud.” [Siegel, 2008, pp. 261-264]

Constitutional lawyers and experts believe that the Supreme Court will not accept the petition to reopen the landmark US v Reynolds case (see February 26, 2003 and May 30, 2003). Kate Martin of the Center for National Security Studies says that the petition is essentially frivolous, and says of the claim that Reynolds was decided on the basis of a fraudulent government presentation: “That the facts of the original case are not true is irrelevant to the state secrets privilege (see March 9, 1953). The idea that it undercuts the privilege is ridiculous. Often in cases, after they’re decided, the facts are proven not to be true. That’s the nature of the legal system. Sometimes people lie. Sometimes there’s new information.” Law professor Jonathan Turley is more sympathetic to the petition, but agrees that the Supreme Court will probably not hear it: “For the Supreme Court to address the fact clearly that it had been lied to would open difficult issues.… The Court used the facts of Reynolds to say the government could be trusted.… Reynolds was based on trust, on willful blinders. There’s much danger in going back now, in recognizing that the government routinely lies. They’re not going to face that. They won’t reopen this. I think Reynolds is like discovering an unfaithful wife after fifty years of marriage. You’re hurt by the betrayal, but you can’t turn back half a century. You preserve the marriage for the children’s sake” (see December 1980, September 1982, November 1984, January 1990, June 13, 1991, and September 16, 1992). [Siegel, 2008, pp. 266-267]

The White House sends a classified memo to the CIA. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) and the Washington Post will later learn that the memo approves the use of “harsh tactics” by CIA interrogators in questioning suspected terrorists. The memo was requested by CIA Director George Tenet, who asked for legal cover for the torture and harsh interrogation methods employed by CIA interrogators. A lawyer in the CIA’s general counsel office, John Radsan, later says, “The question was whether we had enough ‘top cover.’” A senior intelligence official will later add: “The CIA believed then, and now, that the program was useful and helped save lives. But in the agency’s view, it was like this: ‘We don’t want to continue unless you tell us in writing that it’s not only legal but is the policy of the administration.’” A Bush administration official will later blame the CIA for pressuring the administration to approve harsh interrogations, saying: “The CIA had the White House boxed in. They were saying, ‘It’s the only way to get the information we needed, and—by the way—we think there’s another attack coming up.’ It left the principals in an extremely difficult position and put the decision-making on a very fast track.” But a CIA official will dispute that characterization. “The suggestion that someone from CIA came in and browbeat everybody is ridiculous,” the official will state. “The CIA understood that [the interrogation program] was controversial and would be widely criticized if it became public. But given the tenor of the times and the belief that more attacks were coming, they felt they had to do what they could to stop the attack.” [Washington Post, 10/15/2008; American Civil Liberties Union [PDF], 1/28/2009 ]

The Supreme Court refuses to hear a petition to reopen the 1953 state secrets case US v Reynolds (see February 26, 2003). It issues a one-sentence ruling: “The motion for leave to file a writ of error coram nobis is denied.” Plaintiff Judy Palya Loether says: “Maybe the law isn’t about right or wrong. The concept that the government lied to the Supreme Court (see February 2000) seemed to me a terrible thing to do. It appears that the justices were not as appalled as I was.” Further attempts to reopen the case in lower courts will also fail. [Siegel, 2008, pp. 267-298]

US Attorney Carol Lam of the Southern District of California (see November 8, 2002) receives a letter regarding her performance on a recent EARS (Evaluation and Review Staff) assessment performed by the Justice Department. Lam’s office scores significantly higher than the national average of US Attorneys’ offices in a cumularite review. All seven areas scored are rated high—receiving either a 4 or a 5 on a five-point scale. Lam’s office received “best practices” recognition in several areas, including office management. Lam is praised for her “proactive” work in implementing the department’s anti-terrorism policies, her vigorous pursuit of corporate fraud cases, and her office’s work to dismantle and disrupt gang organizations in her district. According to the report, her office’s “Coyote Prosecution Program, which targets alien smuggling foot guides, has been exceedingly successful.” And her office’s focus on technology-related crimes is appropriate for her district. [US House of Representatives, Committee on the Judiciary, 5/21/2007]

The Justice Department’s Office of Legal Counsel (OLC) delineates a method of replacing a US Attorney for up to 330 days without the designated attorney having to go through Senate confirmation. The memo was requested by the director of the Executive Office of US Attorneys (EOUSA), Guy Lewis. The OLC answers legal questions for the president and his appointees. The memo qualifies the method, saying that the appointee would still have to win Senate confirmation or be approved by a federal court in order to continue serving. The memo is entitled “Temporary Filling of Vacancies in the Office of United States Attorney.” It considers two federal laws governing how to fill vacancies temporarily in positions that ordinarily must be confirmed by the Senate. One law allows the president to designate an “acting” replacement for any such position to serve for 210 days. The other law, which applies to US Attorneys only, allows the attorney general to appoint an “interim” replacement for 120 days. The memo suggests using the two provisions in tandem—appointing a person as an acting US Attorney for 210 days and then reclassifying them as an interim US Attorney for 120 more days. In total, a person could use the two classifications to serve as US Attorney for almost a year without undergoing Senate confirmation. [US Department of Justice, 9/5/2003 ; Boston Globe, 4/28/2007]

Sheldon Bradshaw, a deputy assistant attorney general at the Justice Department’s Office of Legal Counsel (OLC), sends a memo to Roz Rettman of the Office of Management and Budget. The memo remains secret, but it concerns an unspecified piece of draft legislation. It is in response to a Freedom of Information Act Request for documents concerning the treatment of detainees. [ProPublica, 4/16/2009]

Justice Department officials generate a list of US Attorneys by judicial district, with basic information about each one (names and relative sizes of district: “small,” “medium,” or “large”). Some have handwritten annotations included. Most of the names will be redacted when the list is released to the House Judiciary Committee in April 2007, but the names of US Attorneys fired in 2006 (see March 10, 2006, December 7, 2006, and December 20, 2006) are included. Kevin Ryan of the Northern District of California has the following annotation: “tough district; don’t know if he’d fit in to the mix very well,” and another indecipherable phrase. Carol Lam of the Southern District of California is notated as “very independent.” The officials who generate and notate the list are not identified. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ]

The Justice Department posts on its Web site a heavily redacted copy of a report it had commissioned about its own record of racial diversity in the workplace. Half of the report’s 186 pages are censored, including the summary and conclusions. Russ Kick, the author and First Amendment activist who maintains the Web site “The Memory Hole,” downloads the report and realizes that he can digitally remove the redaction lines to read the report in its entirety. When he does so, he realizes that most of the redactions are to hide reports from minority lawyers at the department, who have filed numerous complaints claiming work conditions rife with “stereotyping, harassment, and racial tension.” When Kick posts the unredacted version of the Justice Department document, civil rights experts and Congressional Democrats accuse the department of trying to hide its findings to avoid culpability and negative publicity. But the department claims that the portions of the report that were redacted, including the conclusions, were “deliberative and predecisional,” and therefore legal to exclude under the Freedom of Information Act. [Russ Kick, 10/21/2003; Savage, 2007, pp. 105]

Jack Goldsmith succeeds Jay Bybee as the head of the Justice Department’s Office of Legal Counsel (OLC). The OLC essentially performs two functions: advising the executive branch on the legal limits of presidential power, and crafts legal justifications for the actions of the president and the executive branch. Goldsmith, who along with fellow Justice Department counsel and law professor John Yoo, is seen as one of the department’s newest and brightest conservative stars. But instead of aiding the Bush administration in expanding the power of the executive branch, Goldsmith will spend nine tumultuous months battling the White House on issues such as the NSA’s warrantless wiretapping program, the administration’s advocacy of torture in the interrogation of terrorism suspects, and the extralegal detention and military tribunals of “enemy combatants.” Goldsmith will find himself at odds with Yoo, the author of two controversial OLC memos that grant the US government wide latitude in torturing terror suspects (see January 9, 2002 and August 1, 2002), with White House counsel and future attorney general Alberto Gonzales, and with the chief aide to Vice President Dick Cheney, David Addington, who along with Cheney is one of the strongest advocates of the so-called “unitary executive” theory of governance, which says the president has virtually unlimited powers, especially in the areas of national security and foreign policy, and is not always subject to Congressional or judicial oversight. Within hours of Goldsmith’s swearing-in, Goldsmith receives a phone call from Gonzales asking if the Fourth Geneva Convention, which protects civilians in war zones such as Iraq, covers terrorists and insurgents as well. Goldsmith, after intensive review with other lawyers in and out of the Justice Department, concludes that the conventions do indeed apply. Ashcroft concurs. The White House does not. Goldsmith’s deputy, Patrick Philbin, says to Goldsmith as they drive to the White House to meet with Gonzales and Addington, “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” Philbin’s prediction is accurate; Addington is, Goldsmith recalls, “livid.” The physically and intellectually imposing Addington thunders, “The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision.” Addington refuses to accept Goldsmith’s explanations. Months later, an unmollified Addington will tell Goldsmith in an argument about another presidential decision, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” These initial encounters set the tone for Goldsmith’s stormy tenure as head of the OLC. Goldsmith will lead a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith will resign in June of 2004 (see June 17, 2004). [New York Times Magazine, 9/9/2007]

The Office of Legal Counsel (OLC)‘s Nicholas Quinn Rosenkranz sends a classified memo to his boss, OLC chief Jack Goldsmith. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Geneva Conventions. [American Civil Liberties Union [PDF], 1/28/2009 ]

Lawyers for accused terrorist Zacarias Moussaoui, battling to force the US government to allow them to depose other accused terrorists as part of their defense (see May 14, 2003), contact Jeff Almeida, the lawyer for the plaintiffs who sought to reopen the 1953 state secrets case US v Reynolds. They ask how his petition for coram nobis—a request for the court to “right a wrong”—went. Almeida tells them that the Court turned the petition down without comment (see June 23, 2003). Moussaoui’s lawyers tell Almeida that the government prosecutors were so reliant on Reynolds that “they had been waving it around the courtroom any chance they got.” Plaintiff Susan Brauner later says that she is glad Moussaoui’s lawyers contacted Almeida, and says she finds their interest “most encouraging.” She will add, “If we eventually walk away with nothing more than one concrete example where the case was of possible use to someone else… then I will believe we have done some good in impacting or at least raising the issue.” [Siegel, 2008, pp. 272-273]

The head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, and OLC lawyer Robert Delahunty, send a classified memo to the Defense Department. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Geneva Conventions as they apply to the treatment of detainees in US custody. Presumably, the memo is in reference to previous legal advice submitted to Goldsmith by an OLC attorney-adviser regarding Geneva (see October 31, 2003). [American Civil Liberties Union [PDF], 1/28/2009 ; ProPublica, 4/16/2009]

General Tommy Franks, the commander of US forces in Iraq, says he would favor replacing America’s democracy with a military-run government in the event of another 9/11-level terrorist attack. “It would begin to unravel the fabric of our Constitution,” he says, “and under those circumstances I would be open to the idea that the Constitution could be scrapped in favor of a military form of government.” [Hunt, 9/1/2009, pp. 13]

Quiet opposition builds within the Justice Department against the White House’s attacks on civil liberties and governmental process in the name of national security. The opposition is led by James Comey, the deputy attorney general under John Ashcroft, and includes the chief of the Office of Legal Counsel, Jack Goldsmith, and other like-minded Justice Department lawyers and officials. Comey, Goldsmith, and many of their colleagues will resign from their posts, some perhaps pressured by the White House to get out without making a fuss (see June 17, 2004). Comey and Goldsmith are the point men of this opposition group, though they will speak little in public about their experiences until they testify before the Senate in 2007 (see May 15, 2007 and October 2, 2007). Standing 'Up to the Hard-Liners' - Newsweek, one of the only mainstream media outlets to report on this “insurrection” at any length, will call it “one of the most significant and intriguing untold stories of the war on terror.” The magazine will report in 2006: “These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as far-fetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law.… These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.” Comey, Goldsmith, and their colleagues do not oppose the war on terror in principle, and share the administration’s concerns about the restraints imposed on the government in compiling intelligence on suspected terrorists. Their opposition centers on the process used by the White House, which routinely ignores and runs over Congress, the judiciary, and the law in implementing its agenda. White House Denial - The White House will continue to deny that this opposition group ever existed, with a spokeswoman for Vice President Dick Cheney saying in 2006: “The proposition of internal division in our fight against terrorism isn’t based in fact. This administration is united in its commitment to protect Americans, defeat terrorism and grow democracy.” [Newsweek, 2/6/2006]

The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, begins an internal review of the legality of the NSA’s warrantless wiretapping program (see December 15, 2005). The program is kept so secret that only four Justice officials even have access to information about its inner workings, a pattern of poor consultation he will call “the biggest legal mess I have ever encountered” when he testifies to the Senate about the program four years later (see October 2, 2007). Neither Attorney General John Ashcroft nor Justice’s top legal counsel know much about the program. When Goldsmith begins his legal review, the White House initially refuses to brief Deputy Attorney General James Comey about it. Goldsmith later testifies that he cannot find “a legal basis for some aspects of the program.” Upon completing the review, Goldsmith declares the program illegal, with the support of Ashcroft and Comey. However, White House officials are irate at Goldsmith’s findings. [Washington Post, 10/20/2007]

US Attorney Paul Charlton of Arizona (see November 14, 2001) does well in his first Evaluation and Review Staff (EARS) evaluation by the Justice Department. His evaluation states in part that Charlton is “well respected by USAO [the US Attorney’s Office] staff, investigative and civil client agencies, [the] local law enforcement community, [the] Native American Nations, and [the] judiciary regarding his integrity, professionalism, and competence.” The only criticism of Charlton is a note that says his adherence to a chain of command structure in the office has “led to a perception by some that he is inaccessible” and “not open to suggestions or criticism.” [Iglesias and Seay, 5/2008, pp. 162; US Department of Justice, Office of the Inspector General, 9/29/2008] An earlier review of the EARS data from the Executive Office for US Attorneys noted that Charlton’s district scored “considerably higher” than the national average of US Attorneys’ offices in its cumulative scores. Charlton received praise for his work with the anti-terrorism task force and several areas where “best practices” for US Attorneys’ offices throughout the nation were noted. [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Jack Goldsmith, the new head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), finds himself embroiled in a huge, if secretive, controversy over Justice Department lawyer John Yoo’s torture memos (see January 9, 2002 and January 25, 2002). Yoo, who wrote the original memos over former OLC chief Jay Bybee’s signature, had placed the OLC in the position of asserting that torture can indeed be used against terror suspects. Goldsmith disagrees, feeling that Yoo’s definitions of torture are far too narrow and give far too much latitude to US interrogators. He also believes that Yoo’s assertions of near-unchecked presidential power to authorize torture—at the direct expense of Congressional and judicial oversight—has no legal basis. And, Goldsmith worries, the opinions could be interpreted as a clumsy, “tendentious” attempt to protect Bush officials from criminal charges. The conflict between Goldsmith and Yoo will cost the two men their friendship. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith will recall in 2007. “We don’t talk anymore, and that’s one of the many sad things about my time in government.” Goldsmith decides to withdraw the follow-up March 2003 torture memo, and tells White House officials they cannot rely on it any longer. Actually doing so proves a tricky business. [New York Times Magazine, 9/9/2007]'Serious, Serious Problems' - Goldsmith will say in September 2007: “As soon as I absorbed the opinions I realized… that my reaction to them was a big problem. The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn’t find any precedent for it. And I did not want to do anything to affect either the programs or the underlying opinions. But they were serious, serious problems, and I knew if and when I was asked to stand by them that I would have a very hard time doing so.” [Newsweek, 9/8/2007]Pressure from Abu Ghraib Scandal - The legal and bureaucratic niceties of withdrawing the memos become moot when, in April 2004, the Abu Ghraib scandal breaks (see Mid-April 2004), and when in June 2004, the first memo is leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” he later says, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.” [New York Times Magazine, 9/9/2007] “I had determined that the analysis was flawed,” he will recall. “But I hadn’t determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions… and I couldn’t do so. I had already made up my mind many months earlier and I wasn’t about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn’t in the position to make an independent ruling on the other techniques. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.” [Newsweek, 9/8/2007]White House Resists Change - Though Goldsmith has the support of his boss, Attorney General John Ashcroft, Ashcroft’s deputy, James Comey, and his own deputy, Patrick Philbin, he knows the White House will fight the withdrawal. Goldsmith will decide to issue the withdrawal and then resign his position (see June 17, 2004), effectively forcing the administration to either quietly accept the withdrawal, or fight it and make his resignation a media circus. “If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” he later recalls. “The timing was designed to ensure that the decision stuck.” Vice President Dick Cheney’s chief aide, David Addington, among other White House officials, is furious over the withdrawal of the torture opinion (interestingly, White House counsel and future attorney general Alberto Gonzales will modify his own opposition to the withdrawals later, telling Goldsmith in 2007, “I guess those opinions really were as bad as you said”). [New York Times Magazine, 9/9/2007]Expansion of Presidential Power - Addington asks Goldsmith incredulously, “Why are you trying to give away the president’s power?” Like Cheney, Addington believes, in Goldsmith’s words, “that the very act of asking for Congress’s help would imply, contrary to the White House line, that the president needed legislative approval and could not act on his own. The president’s power would diminish, Addington thought, if Congress declined its support once asked, especially if it tried to restrict presidential power in some way. Congress had balked, during the month after 9/11, at giving the president everything he had asked for in the Congressional authorization to use force and the Patriot Act. Things would only be worse in 2004 and beyond, Addington believed.” Addington’s two questions are always, Goldsmith writes, “‘Do we have the legal power to do it ourselves?’ (meaning on the president’s sole authority), and ‘Might Congress limit our options in ways that jeopardize American lives?’” While Goldsmith and his colleagues agree that the president has the power, and that seeking Congressional approval might tie the White House’s hands more so than the administration is willing to accept, Goldsmith worries that an unfavorable Supreme Court decision would undercut Bush’s authority much more so than any restrictions passed by a compliant, Republican-led Congress. Addington sees things in very simple terms: ”“We’re going to push and push and push until some larger force makes us stop,” Addington says on several occasions. Addington tells Goldsmith, “Now that you’ve withdrawn legal opinions that the president of the United States has been relying on, I need you to go through all of [the OLC terror memos] and let me know which ones you still stand by.” Goldsmith will do just that, further angering Addington. [Savage, 2007, pp. 184; Slate, 9/11/2007]Absolute Power Required to Defend Nation - Goldsmith later writes: “He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.” [Slate, 9/11/2007]

The US government issues a terror alert, based on intelligence that hints at a potential attack somewhere in Las Vegas for New Year’s Eve. The FBI quickly assembles data on most of the 1 million “potential suspects,” which includes all tourists staying in Vegas for the holidays, and examines records on every hotel guest, car and truck rentals, guest lists for casinos, storage leases, and airplane travel. Those records are combed for any possible connections to terrorist organizations. When the city’s hospitality industry begins balking at the sweeping nature of the FBI’s information requests, National Security Letters (NSLs) are used to force industry officials to produce the data. Everything swept up by the Vegas data search remains in FBI databases. The terror alert will end on January 10, 2004, with no information about any terrorist actions or possible suspects located. [Washington Post, 11/6/2005]

FISC Presiding Judge Colleen Kollar-Kotelly. [Source: Washington Post]James Baker, counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review (no relation to the former Secretary of State James A. Baker), informs the Foreign Intelligence Surveillance Court (FISC) that the government has, at least twice, improperly used excluded evidence from NSA domestic wiretaps to obtain warrants from FISC. Colleen Kollar-Kotelly, the senior FISC judge, is angered by this as both she and her predecessor, Royce Lambeth, have insisted that no evidence obtained from warrantless wiretaps can be used to obtain warrants for further surveillance from FISC. The Justice Department assured them that the administration would never attempt to secure warrants in such a manner. By using the excluded information, the Justice Department rendered useless the federal screening system put in place to keep such evidence from reaching FISC, which did not want to receive it due to the questionable legality of the domestic surveillance program (see December 15, 2005). Kollar-Kotelly’s complaint about the use of tainted evidence results in a brief suspension of the NSA wiretapping program. But the practice will continue (see 2005). [Washington Post, 2/9/2006]

Though the issue of abuse of National Security Letters (NSLs) has become an issue of concern for many civil libertarians and constitutional scholars (see October 25, 2005 and January 2004), Congress fails to conduct any meaningful oversight on their use and abuse. Pat Roberts (R-KS), the chairman of the Senate Intelligence Committee, says that the use of NSLs by the FBI is perfectly legal, “non-intrusive,” and “crucial to tracking terrorist networks and detecting clandestine intelligence activities.” The FBI provides enough information to Congress in “semi-annual reports [that] provide the committee with the information necessary to conduct effective oversight,” he says. Roberts is referring to the Justice Department’s classified statistics, which have only been provided three times in four years, and give no specific information about the NSLs. The Justice Department has repeatedly refused requests by committee members for a sampling of actual NSLs, a description of their results, or an example of their contribution to a particular case. In 2004, the Senate asks the Attorney General to “include in his next semiannual report” a description of “the scope of such letters” and the “process and standards for approving” them. The Justice Department fails to do so, or even to reply to the request. Representative Zoe Lofgren (D-CA), a House Judiciary Committee member, says that congressional Democrats have little recourse: “The minority has no power to compel, and… Republicans are not going to push for oversight of the Republicans. That’s the story of this Congress.” The Justice Department notes that its inspector general, Glenn Fine, has not reported any abuses of the NSLs, but those reports beg the question: how can citizens protest searches of their personal records if they are never notified about such searches? Fine says, “To the extent that people do not know of anything happening to them, there is an issue about whether they can complain. So, I think that’s a legitimate question.” [Washington Post, 11/6/2005]

Instead of reporting the names or even the numbers of staffers in the Office of the Vice President (OVP), the office provides the following information for the federal government’s official staff directory, nicknamed the “Plum Book:” “The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code). The… legislative branch… and the annual transportation-treasury appropriations act… provide funds for the Vice President to hire employees to assist him in carrying out his legislative and executive functions. Executive branch employees also may be assigned or detailed to the Vice President… . The Office of the Vice President (OVP) consists of the aggregation of Vice Presidential employees whose salary is disbursed by the Secretary of the Senate from the Vice President’s legislative appropriation, Vice Presidential employees employed with the Vice President’s executive appropriation, employees assigned or detailed to the Vice President, and consultants engaged by the Vice President. The numbers, titles and salaries of OVP personnel change with some frequency.” [Government Printing Office, 2004 ]

An unidentified US telecommunications firm refuses to turn over its phone records to the government as part of a joint program by the NSA and the Drug Enforcement Agency to combat Latin American drug-trafficking that has been going on since the 1990s (see 1990s). The firm believes the administrative subpoenas issued for its information by the Justice Department are overly broad, and that it fears the public relations and legal backlashes it might suffer if the public were to learn of its cooperation. [New York Times, 12/16/2007]

At the urging of US Attorney John McKay (see October 24, 2001), the Naval Criminal Investigative Service (NCIS) agrees to fund an information database system that will become known as the Northwest Law Enforcement Information Exchange (LInX). The database is intended to let local, state, and federal law enforcement agencies share information. McKay has the support of Deputy Attorney General James Comey, who has the power to direct Justice Department agencies to share their records with the project. When McKay explains the project to Comey, Comey envisions the project being used as part of the “OneDOJ” initiative to persuade Justice Department law enforcement agencies to share information with one another and with state and local law enforcement. Comey will call McKay a “visionary” concerning information sharing, and supports McKay’s efforts wholeheartedly. [US Department of Justice, Office of the Inspector General, 9/29/2008]

The White House and the Justice Department are at odds over the legality of the National Security Agency’s “data mining” program, which involves the NSA combing through enormous electronic databases containing personal information about millions of US citizens, ostensibly for anti-terrorism purposes and often without court warrants (see February 2001, Spring 2001, After September 11, 2001, After September 11, 2001, October 2001, and Early 2002). Such data mining by the NSA potentially threatens citizens’ constitutional right to privacy. This clash between the White House and the Justice Department is one of the reasons that White House counsel Alberto Gonzales and chief of staff Andrew Card will try to pressure Attorney General John Ashcroft, while Ashcroft is recuperating from surgery, to reauthorize the NSA program over the objections of Deputy Attorney General James Comey. That attempt to force reauthorization over Justice Department complaints will result in the protest resignations of Ashcroft, Comey, and other Justice officials (see March 10-12, 2004). In 2007, Gonzales will deny that any such attempt to pressure Ashcroft to overrule Comey ever happened (see July 24, 2007), and will deny that there was any such dispute between the White House and Justice Department over the NSA program. Those denials will lead to calls to investigate Gonzales for perjury (see May 16, 2007). In late 2005, President Bush will admit, after the New York Times reveals the existence of the NSA warrantless wiretapping program (see Early 2002), that the program indeed exists, but will not acknowledge the data mining. Several current and former administration officials, interviewed by reporters in 2007, refuse to go into detail about the dispute between the White House and Justice Department, but say that it involves other issues along with the data mining. They will also refuse to explain what modifications to the surveillance program Bush will authorize to mollify Justice Department officials. Bush and his officials, including Gonzales, who will ascend to the position of attorney general in 2005, will repeatedly insist that he has the authority, both under the Constitution and under Congress’s authorization to use military force against terrorists passed after the 9/11 attacks (see September 14-18, 2001), to bypass the requirements for court warrants to monitor US citizens. Critics will say that such surveillance is illegal under the Foreign Intelligence Surveillance Act. [New York Times, 7/29/2007]Domestic Surveillance Began Before 9/11? - Though Bush officials eventually admit to beginning surveillance of US citizens only after the 9/11 attacks, that assertion is disputed by evidence suggesting that the domestic surveillance program began well before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

The FBI begins compiling a database of information about US citizens (see October 25, 2005). The database, ordered by Attorney General John Ashcroft, uses as one of its primary sources information gleaned through so-called “National Security Letters,” or NSLs, which are documents ordering US citizens to reveal private information about their clients, relatives, or employees. Ashcroft overrides a 1995 guideline that mandates the destruction of such information obtained through NSLs if it proves “not relevant to the purposes for which it was collected.” Ashcroft orders the FBI to compile the information in its database, and even tells the agency that it can freely share that information with other government agencies if it desires. Ashcroft also orders the FBI to develop “data mining” technology to probe for “hidden links” among the citizens in its growing cache of electronic data. The FBI complies, using the same technology used by the CIA, which itself is barred from keeping such files on US citizens. Ashcroft extends the mandate even further, allowing the FBI to compile consumer data from private data-collection firms such as ChoicePoint and LexisNexis, though Ashcroft’s predecessors had ruled that compiling such data would violate citizens’ constitutional rights to privacy. Soon, FBI field offices will have access to ChoicePoiint databases in their squad rooms. Adding this commercially provided data to the NSL-based data gleaned by the FBI, and the FBI will soon have a wealth of data on hundreds of thousands of US citizens never accused of a crime. Former Republican congressman Bob Barr, and many others, strenuously object to the practice, but their concerns are largely ignored. [Washington Post, 11/6/2005]

Jack Goldsmith, the embattled head of the Justice Department’s Office of Legal Counsel (OLC) (see October 6, 2003), finds himself again mired in a conflict with Vice President Dick Cheney’s hardline chief aide, David Addington. Goldsmith has already fought with Addington over Goldsmith’s decision to withdraw the OLC’s support for the administration’s memos justifying torture (see December 2003-June 2004). Now Goldsmith and Addington are at odds over the policies governing the detention and trial of suspected terrorists. The spark for this conflict is the January 2004 Supreme Court decision to review the detention of US citizen and suspected “enemy combatant” Yaser Esam Hamdi (see January 9, 2004). Goldsmith suggests going to Congress to have that body pass legislation declaring such detention legal, reasoning that the Supreme Court would be less likely to rule against the administration if Congress had authorized such detention policies. Addington, who like his boss does not accept the idea that Congress has any business interfering in such policy decisions, refuses to countenance the idea, and Goldsmith’s proposal goes nowhere. In June 2004, the Supreme Court approves the detention policies but put modest legal restrictions on the administration’s ability to detain citizens without trial. Goldsmith, this time with deputy solicitor general Paul Clement, again suggests going to Congress; once again, Addington refuses. The White House, Goldsmith later says, continues to operate as if it could avoid any adverse decisions from the Supreme Court. When the Court issues its decision in the Hamdan case (see November 8, 2004), rejecting the administration’s policy of trying terror suspects in military tribunals without Congressional approval, and upholding the preeminence of the Third Geneva Convention in protecting the rights of accused terror detainees—including al-Qaeda suspects—the decision has a shattering effect on the Bush administration’s legal arguments towards detaining and trying those suspects. Goldsmith believes the Court’s decision is “legally erroneous” but has huge political consequences. Now detainees at Guantanamo Bay have more legal rights than ever before, and for the first time, the specter of war-crimes charges against Bush officials becomes a real possibility. Goldsmith later says that it is in these arguments, more than in the battles over domestic wiretapping or interrogation techniques, that Addington’s attempts to expand presidential power actually backfires. Goldsmith is later vindicated when, in September 2006, one of the last acts of the Republican-led Congress will give the administration every power the administration had asked for, authorizing the military commissions that the Court had rejected. The Bush administration could have avoided a damaging Court decision by working with Congress beforehand. “I’m not a civil libertarian, and what I did wasn’t driven by concerns about civil liberties per se,” he says in a 2007 interview. “It was a disagreement about means, not ends, driven by a desire to make sure that the administration’s counterterrorism policies had a firm legal foundation.” [New York Times Magazine, 9/9/2007]

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), is astonished at the open contempt displayed by White House officials over dealing with Congress and the restraints imposed by the Foreign Intelligence Surveillance Act (FISA). Though Goldsmith agrees with the aims of the administration in battling terrorism, and agrees with the administration that FISA may present undue restraint on conducting terror investigations, he is shocked at the cavalier manner in which the administration ignores the law and the constitutional mandates for Congressional oversight. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” White House aide David Addington tells Goldsmith. Addington, the chief aide to Vice President Dick Cheney, and other Bush officials treat FISA the same way they treated other laws they disdained, Goldsmith later recalls: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he will write in his 2007 book “The Terror Presidency” (see September 9, 2007). [New York Times Magazine, 9/9/2007]

US Representative Darrell Issa (R-CA) requests information from the Justice Department about the arrest of an alleged illegal alien smuggler from US Attorney Carol Lam (see November 8, 2002), the federal prosecutor who works the Southern California district. Issa asks for information about Lam’s decision not to prosecute Antonio Amparo-Lopez, who was arrested on suspicion of “alien smuggling” over the US-Mexican border. [US Department of Justice, 3/23/2007 ] Issa was quoted in a December 2003 article in the Riverside, California, Press-Enterprise entitled “Border Agents Face Uphill Fight,” in which the Justice Department was criticized for not prosecuting immigrant smugglers frequently enough. Shortly thereafter, the same newspaper published an article detailing how one such smuggler, Amparo-Lopez, was arrested at a border checkpoint but was subsequently released. Lam will respond to Issa in mid-March, requesting that he direct his inquiries to the Justice Department in Washington. On May 24, Issa will receive a letter from Assistant Attorney General William Moschella, stating, “Based upon all of the facts and circumstances of his arrest, the United States Attorney’s Office declined to prosecute Mr. Amparo-Lopez.” [National Review, 3/28/2007]

Sixty-two leading scientists, including Nobel Prize laureates, university chairs and presidents, and former federal agency directors, sign a joint statement protesting the Bush administration’s “unprecedented” politicization of science (see January 2004 and June 1, 2005). Over 11,000 scientists will add their names to the statement, disseminated by the Union of Concerned Scientists, in the coming years. “When scientific knowledge has been found to be in conflict with its political goals, the administration has often manipulated the process through which science enters into its decisions,” the scientists write. “This has been done by placing people who are professionally unqualified or who have clear conflicts of interest in official posts and on scientific advisory committees; by disbanding existing advisory committees; by censoring and suppressing reports by the government’s own scientists; and by simply not seeking independent scientific advice. Other administrations have, on occasion, engaged in such practices, but not so systematically nor on so wide a front. Furthermore, in advocating policies that are not scientifically sound, the administration has sometimes misrepresented scientific knowledge and misled the public about the implications of its policies.” [Union of Concerned Scientists, 2/18/2004; Savage, 2007, pp. 303-304]

Thomas Tamm. [Source: Newsweek]Thomas Tamm, a veteran Justice Department prosecutor with a high-level security clearance, is finishing up a yearlong post with the Office of Intelligence Policy and Review (OIPR), a Justice Department unit handling wiretaps of suspected terrorists and spies. As his stint is coming to a close, Tamm learns of the existence of a highly classified National Security Agency (NSA) program that is electronically eavesdropping on American citizens—domestic wiretapping. He later learns that “the program,” as it is referred to by those few who know of it at all, is called “Stellar Wind.” Concealment from FISA Judges - Tamm learns that the NSA program is being hidden from the Foreign Intelligence Surveillance Act (FISA) Court, a panel of federal judges who by law must approve and supervise such surveillance for intelligence purposes. OIPR lawyers ask the FISA Court for permission to implement national-security wiretaps. But, Tamm learns, some wiretaps—signed only by Attorney General John Ashcroft—are going to the chief FISA Court judge and not the other ten judges on the FISA panel. The “AG-only” requests are extraordinarily secretive, and involve information gleaned from what is only referred to as “the program”—Stellar Wind. Only a very few White House and US intelligence officials know the name and the nature of “the program.” Stellar Wind involves domestic wiretaps on telephones and computer e-mail accounts derived from, but not necessarily linked to, information secured from captured al-Qaeda computers and cell phones overseas. With the voluntary cooperation of American telecommunications companies (see 1997-August 2007 and After, February 2001, February 2001, and February 2001 and Beyond), the NSA program also collects vast amounts of personal data about US citizens’ phone and e-mail communications. The program also collects an enormous amount of financial information from the Treasury Department (see February 28, 2006), all collected as part of the NSA’s “data mining” efforts (see Late 1999 and After September 11, 2001). Program Is 'Probably Illegal,' Says DOJ Official - Tamm, suspicious about the unusual requests, asks his supervisors about the program, and is told to drop the subject. “[N]o one wanted to talk about it,” he will recall. Tamm asks one of his supervisors, Lisa Farabee, “Do you know what the program is?” Farabee replies: “Don’t even go there.… I assume what they are doing is illegal.” Tamm is horrified. His first thought, he will later recall, is, “I’m a law enforcement officer and I’m participating in something that is illegal?” Tamm soon finds out from deputy OIPR counsel Mark Bradley that the chief FISA judge, Colleen Kollar-Kotelly, is raising unwanted questions about the warrant requests (see 2004 and 2005), and “the AG-only cases are being shut down.” Bradley adds, “This may be [a time] the attorney general gets indicted.” Request for Guidance Turned Down - For weeks, Tamm agonizes over what to do. He seeks guidance from a former colleague, Sandra Wilkinson, who now works on the Senate Judiciary Committee. The two have coffee in the Senate cafeteria, and Tamm asks Wilkinson to ask if anyone on the committee knows anything about “the program.” Weeks go by without a response, and Tamm sends Wilkinson an e-mail from his OIPR computer—an e-mail that will later alert the FBI to Tamm’s interest in Stellar Wind. During a second conversation, Wilkinson refuses to give Tamm any information. “Well, you know, then,” he replies, “I think my only option is to go to the press.” Contacting the New York Times - Tamm finally decides to contact the New York Times’s Eric Lichtblau, who has written several stories on the Justice Department that impressed Tamm. By this point he has transferred out of OIPR and back into a Justice Department office that would allow him to return to the courtroom. Tamm calls Lichtblau from a pay phone near the US District Courthouse in Washington. “My whole body was shaking,” he will recall. He identifies himself only as “Mark” (his middle name), and arranges to meet Lichtblau at a bookstore near the Justice Department. (In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau describes Tamm as “a walk-in” source who was “agitated about something going on in the intelligence community.” Lichtblau will describe Tamm as wary and “maddeningly vague,” but as they continue to meet—usually in bookstores and coffee shops in the Capitol District—Tamm’s “credibility and his bona fides became clear and his angst appears sincere. Eighteen months later, after finally overriding a request and warning from President Bush not to print the story (see December 6, 2005), the Times reports on the existence of the NSA program (see December 15, 2005). [Ars Technica, 12/16/2008; Newsweek, 12/22/2008]

US Attorney Paul Charlton of Arizona (see November 14, 2001) begins conferring with Justice Department officials over his idea to have federal law enforcement agents in his district tape-record interrogations of suspects. Charlton came up through the Arizona state criminal justice system, where tape-recording interrogations is routine, and he believes the practice helps prosecutors win cases. He believes the federal policy against tape-recording interrogations is causing his office to lose cases, and considers that policy antiquated and unresponsive to both crime victims and defendants. He discusses the issue with Deputy Attorney General James Comey during a closed session at a conference in San Diego. Days later, Comey’s chief of staff Chuck Rosenberg tells Charlton that the FBI opposes changing the policy. Charlton later says that that opposition is echoed by Johnny Sutton, who chairs the Attorney General’s Advisory Committee. Charlton continues to push the issue, and in May 2005 Comey establishes a working group, which includes Charlton, to formally consider the issue (see April 28, 2005). Charlton will recall that once Comey leaves the Justice Department and is succeeded by Paul McNulty, the issue no longer moves forward. In December 2005, the working group engages in an email discussion with McNulty’s chief of staff Michael Elston on the merits of the policy, but McNulty remains unconvinced. By the end of 2005, the working group has not reached a consensus. In February 2006, Charlton implements the policy in his district. He believes, he later says, that the fact that his office has federal jurisdiction over 21 Native American reservations in his district makes his situation unique. Tape-recording interrogations will help with the violent crime cases that take place on the reservations, but will not impact other districts because they do not have similar jurisdictions. He will also say that FBI agents have the option not to tape-record interrogations. He informs his office and all special agents in charge of federal agencies in his district of his decision. He does not discuss or seek the approval of senior Justice Department officials before implementing the policy. Charlton will say that most of the law enforcement agencies in Arizona are comfortable with the new policy, but the FBI and DEA complain to McNulty over the policy. McNulty will later recall speaking with FBI Director Robert Mueller, who complains that Charlton’s policy could impact criminal prosecutions in other districts that do not record interrogations. On March 1, McNulty tells Charlton to rescind the policy. Charlton refuses and tells Acting Principal Deputy Associate Attorney General William Mercer that he is willing to resign over the issue. McNulty asks Mercer to work with Charlton. Mercer persuades Charlton to design a pilot project for taping interrogations rather than offer his resignation, and promises that it will receive a positive review. Mercer also informs Charlton that McNulty is upset because Charlton did not clear the procedure with his office before implementing it. Charlton asks for something in writing from McNulty’s office confirming the pilot project, and receives an email from McNulty’s chief of staff Michael Elston that reads: “[McNulty] is very interested in having you submit a proposal to have a pilot program in your district. Such a proposal would receive expeditious consideration. [McNulty] understands this issue and is interested in energizing the department’s consideration of it. You are the best advocate for the proposed policy, and he hopes you will play a significant role in the department’s review and the interagency review process.” McNulty’s staff recommends that McNulty approve the program in August 2006, but McNulty takes no action on it, apparently ignoring repeated pressure from Charlton through Mercer. McNulty will later say he never supported the program, though apparently no one in his office informed Charlton of that fact. McNulty will also later say that he probably discussed the matter with Kyle Sampson, the chief of staff to Attorney General Alberto Gonzales, when discussions of firing US Attorneys came up. However, McNulty will say that he does not consider Charlton insubordinate, and does not view Charlton’s actions as constituting an offense requiring termination. [US Department of Justice, Office of the Inspector General, 9/29/2008]

The General Accounting Office (GAO) reports on an array of problems with the military’s missile defense system (see March 23, 1983 and January 29, 1991). Its report includes an unclassified list of 50 recommendations for improving the system that originated in a public report produced by the Pentagon in 2000. Instead of acting on the recommendations, the Pentagon declares the list of recommendations “retroactively classified,” thereby forbidding Congressional members from discussing the recommendations in public. House members Henry Waxman (D-CA) and John Tierney (D-MA), who requested the GAO report, send an angry letter to Defense Secretary Rumsfeld calling the decision to classify the recommendations “highly dubious” and “an attempt to stymie public debate through the use of the classification system.” Rumsfeld ignores the protest. [Savage, 2007, pp. 103-104]

Chuck Rosenberg. [Source: Associated Press / Charles Dharapak]Vice President Dick Cheney challenges objections to the White House’s secret, warrantless surveillance program (see Early 2002) by Justice Department officials. Cheney makes his objections during a meeting attended by high-level White House and Justice Department officials, but this does not come to light until a 2007 testimony by Deputy Attorney General James Comey (see May 15, 2007). [Washington Post, 6/7/2007] (Comey will step down from his post in mid-2005.) [Law.com, 4/21/2005] The White House meetings take place one day before White House officials journey to Attorney General John Ashcroft’s hospital room to try to force Ashcroft to give his approval for the NSA-managed surveillance program (see March 10-12, 2004). Ashcroft will refuse to give his approval. Cheney’s key role in leading what the Washington Post calls “a fierce internal battle over the legality of the warrantless surveillance program” is not known until Comey’s 2007 testimony. The White House meeting, held to discuss Justice Department objections to the NSA program, is attended by Cheney, White House counsel and future attorney general Alberto Gonzales, Cheney’s chief counsel David Addington, and others. Comey will testify that at the time, eight Justice Department officials are prepared to resign if the White House doesn’t back down on forcing the department to sign off on the program. Those officials include FBI director Robert Mueller, US attorney Chuck Rosenberg of the northern Virginia district, and Office of Legal Counsel head Jack Goldsmith. [Washington Post, 6/7/2007]

In an apparent act of political retaliation, Vice President Dick Cheney blocks the promotion of a Justice Department official who raised concerns about the legality of the Bush/NSA domestic wiretapping program (see Early 2002). Patrick Philbin, a senior Justice Department counsel, provided much of the research used by Deputy Attorney General James Comey in Comey’s own refusal to approve the wiretapping program (see March 9, 2004 and March 10-12, 2004). Former White House counsel Alberto Gonzales had replaced Ashcroft as attorney general when Philbin’s name came up for promotion. After Cheney warns Gonzales that he will oppose Philbin’s promotion, Gonzales decides not to promote Philbin to the position of deputy solicitor general. In May 2007, Comey will testify before Congress, “I understood that someone at the White House communicated to Attorney General Gonzales that the vice president would oppose the appointment if the attorney general pursued the matter. The attorney general chose not to pursue it.…It was my understanding that the vice president’s office blocked that appointment” (see May 15, 2007). Senate Judiciary Committee member Charles Schumer (D-NY) says in 2007 of Cheney’s opposition to Philbin’s promotion, and Cheney’s attempts to pressure Justice Department officials to back the wiretapping program, “…White House hands guided Justice Department business. The vice president’s fingerprints are all over the effort to strong-arm Justice on the NSA program.” [Associated Press, 6/7/2007] Comey will resign in 2005 and give a farewell speech in which he will say that some Justice Department officials paid a price for their commitment to doing what’s right. When asked in his 2007 testimony what he referred to, Comey will answer, “I had in mind one particular senior staffer of mine who had been in the hospital room with me and had been blocked from promotion, I believed as a result of this particular matter.” Comey is speaking of Philbin, who would have likely been promoted to solicitor general in Bush’s second term. Instead, Philbin resigns from the Justice Department and enters private practice. [National Public Radio, 5/15/2007]

Vice President Dick Cheney gives the Congressional leaders known as the “Gang of Eight”—the House speaker and House minority leader, the Senate majority and minority leaders, and the ranking members of the House and Senate intelligence committees—their first briefing on the NSA’s warrantless wiretapping program (see Early 2002). The Democratic leaders at the meeting are House Minority Leader Nancy Pelosi (D-CA), Senate Minority Leader Tom Daschle (D-SD), House Intelligence Committee ranking member Jane Harman (D-CA), and Senate Intelligence Committee ranking member John D. Rockefeller (D-WV). Daschle (D-SD) later recalls the meeting as superficial. Cheney “talked like it was something routine,” Daschle will say. “We really had no idea what it was about.” Unbeknownst to many of the Congressional leaders, White House and Justice Department leaders are locked in a sharp dispute over whether or not the program is legal and should be continued; Cheney is preparing to send White House counsel Alberto Gonzales and chief of staff Andrew Card to Attorney General John Ashcroft’s hospital room to persuade the gravely ill, heavily sedated Ashcroft to overrule acting Attorney General James Comey and reauthorize the program (see March 10-12, 2004). The briefing is designed to give the appearance of Congressional approval for the program. While most Republicans in the briefing give at least tacit approval of the program, some Democrats, as Daschle will recall, expressed “a lot of concerns” over the program’s apparent violation of fundamental Congressional rights. Pelosi later recalls that she “made clear my disagreement with what the White House was asking.” But administration officials such as Gonzales will later say (see July 24, 2007) that the eight Congressional leaders are in “consensus” in supporting the program, a characterization that is patently false (see July 25, 2007). Gonzales will also later testify that today’s briefing does not cover the NSA wiretapping program, later dubbed the “Terrorist Surveillance Program” (TSP), another apparent falsehood contradicted by Democratic senators such as Rockefeller and Russ Feingold, as well as testimony and notes on the hospital room visit made by FBI Director Robert Mueller and a memo from John Negroponte, the director of national intelligence. Many feel that Gonzales is using the moniker “Terrorist Surveillance Program,” not in use until December 2005, to play what reporter Michael Isikoff calls “verbal parsing” and “a semantic game”—since the NSA wiretapping program is not known by this name at the time of the Congressional briefing, Gonzales will imply that the briefing wasn’t about that program. [Newsweek, 8/6/2007; Klein, 2009, pp. 88]Cheney, Gonzales: Democrats on Board with Illegal Program - In Angler: The Cheney Vice Presidency, a 2008 book by Washington Post reporter Barton Gellman, Gonzales will claim there is a “consensus in the room” among Democrats and Republicans alike, and according to Gellman’s reporting on Gonzales, “four Democrats and four Republicans, duly informed that the Justice Department had ruled something unlawful, said the White House should do it anyway.” Cheney will confirm this allegation during a December 2008 appearance on Fox News. [Klein, 2009, pp. 88]Domestic Surveillance Began before 9/11? - Cheney fails to inform the lawmakers that the wiretapping program may have begun well before the 9/11 attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, July 2001, and Early 2002).

Michael Battle, the director of the Executive Office for US Attorneys, sends a memo to Kyle Sampson, counsel to Attorney General John Ashcroft, informing him that 16 US Attorneys’ offices are below standards—“underperforming”—in implementing Project Safe Neighborhoods (PSN), a Justice Department initiative to reduce gun violence and prosecute offenders who use guns in the commission of crimes. One of the US Attorneys cited is Carol Lam of the Southern District of California (see November 8, 2002). The memo notes that Lam’s office returned “only 17 firearms indictments” in 2003, and that her office’s PSN indictments and defendants “per criminal work years for FY 2003 is the lowest in the nation.” Subsequent Justice Department analyses of PSN performance continue to identify Lam’s district as needing improvement in firearms prosecutions. [US Department of Justice, Office of the Inspector General, 9/29/2008]

Attorney General John Ashcroft is visited by a squad of top White House and Justice Department officials just hours after Ashcroft underwent emergency surgery for severe, acute pancreatis, and is still recuperating in intensive care. The White House officials attempt to persuade the barely lucid Ashcroft to give his formal approval for the secret National Security Agency warrantless wiretapping surveillance program (see Early 2002), which requires the Justice Department to periodically review and approve it. [National Public Radio, 5/15/2007; Washington Post, 5/16/2007; Washington Post, 6/7/2007; Associated Press, 6/7/2007]Comey, Goldsmith Rush to Head Off Aides - Deputy Attorney General James Comey testifies to the incident before the Senate Judiciary Committee over three years later (see May 15, 2007). Comey will recall that he and Ashcroft had decided not to recertify the surveillance program due to their concerns over its legality and its lack of oversight. On March 9, Ashcroft was rushed to the hospital with severe pancreatis. As per Justice Department procedures, Comey became acting attorney general for the duration of Ashcroft’s incapacity. The next night, just hours after Ashcroft underwent emergency surgery for the removal of his gallbladder, Comey receives an urgent phone call from Ashcroft’s aide, David Ayres, who himself has just spoken with Ashcroft’s wife Janet. Ayres tells Comey that White House counsel Alberto Gonzales and White House chief of staff Andrew Card are en route to Ashcroft’s hospital room to pressure Ashcroft to sign off on the program recertification. A furious Comey telephones FBI director Robert Mueller, and the two, accompanied by aides, race separately through the Washington, DC streets with sirens wailing to reach Ashcroft’s hospital room; they beat Gonzales and Card to the room by a matter of minutes. “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Comey will testify, and will add that to him, Ashcroft appears “pretty bad off.” En route, Mueller instructs the security detail protecting Ashcroft not to allow Card or Gonzales to eject Comey from the hospital room. Card and Gonzales enter just minutes later. [Washington Post, 5/16/2007; PBS, 5/16/2007] “And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card,” Comey will testify. “They came over and stood by the bed, greeted the attorney general very briefly, and then Mr. Gonzales began to discuss why they were there—to seek his approval for a matter.” [National Public Radio, 5/15/2007] Gonzales is holding an envelope containing an executive order from Bush. He tells Ashcroft that he needs to sign off on the order, thereby giving the wiretapping program Justice Department authorization to continue unabated. Comey will testify that Ashcroft “lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me. [Ashcroft then adds] ‘But that doesn’t matter, because I’m not the attorney general. There is the attorney general,’” pointing at Comey. Gonzales and Card leave the room without ever acknowledging Comey’s presence. “I was angry,” Comey will recall. “I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me.” [Washington Post, 5/16/2007; Washington Post, 6/7/2007] “That night was probably the most difficult night of my professional life, so it’s not something I forget,” Comey will testify. [PBS, 5/16/2007] Goldsmith is also in the room; like Comey, Goldsmith receives a phone call alerting him to Gonzales’s and Card’s visit, and like Comey, Goldsmith races through the Washington streets to arrive at Ashcroft’s room minutes before Gonzales and Card arrive. He, too, is astonished at the brazen, callous approach taken by the two White House officials against Ashcroft, who he describes as laying in his darkened hospital room, with a bright light shining on him and tubes and wires protruding from his body. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith later recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.” As Gonzales and Card leave the room, Goldsmith will recall, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.” [New York Times Magazine, 9/9/2007] After Gonzales and Card leave the room, Comey asks Mueller to instruct the security detail not to let any more visitors into the room, except for family, without Mueller’s approval, apparently in order to keep Gonzales and Card from attempting to return. [US Department of Justice, 8/14/2007]Cheney or Bush Behind Visit? - The hospital visit is sparked by at least two events: a meeting of White House officials a day earlier, where Vice President Dick Cheney attempted to push reluctant Justice Department officials to approve the surveillance program (see March 9, 2004), and Comey’s own refusal to certify the legality of the surveillance, as noted above. [Washington Post, 6/7/2007] Some believe that the timing of the incident shows that Cheney is the one who ordered Gonzales and Card to go to Ashcroft’s hospital room; Comey personally informed Cheney of his decision not to give his approval to the program. Speculation about Cheney’s ordering of the visit cannot be confirmed, [National Journal, 7/7/2007; National Journal, 8/16/2007] though the New York Times states flatly in an op-ed that “Vice President Dick Cheney sent Mr. Gonzales and [Card] to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.” [New York Times, 7/29/2007] Three years later, Goldsmith will tell Congress that he believes Bush himself authorized the visit (see October 2, 2007). Meeting in the White House - Minutes after the incident in Ashcroft’s hospital room, Card orders Comey to appear at a late-night meeting at the White House; Comey refuses to go alone, and pulls Solicitor General Theodore Olson from a dinner party to act as a witness to the meeting. “Mr. Card was very upset and demanded that I come to the White House immediately. After the conduct I had just witnessed, I would not meet with him without a witness present,” Comey will testify. “[Card] replied, ‘What conduct? We were just there to wish him well.’ And I said again, ‘After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.’” On March 11, after an al-Qaeda bombing in Madrid kills over 200 people (see 7:37-7:42 a.m., March 11, 2004, Bush recertifies the program without the approval of the Justice Department. Comey responds by drafting a letter of resignation, effective March 12. “I couldn’t stay if the administration was going to engage in conduct that the Department of Justice had said had no legal basis,” he will testify. “I just simply couldn’t stay.” Comey is not the only one threatening to resign; he is joined by Ashcroft, Mueller, Ayres, Goldsmith, Justice Department official Patrick Philbin, and others, who all intend to resign en masse if Bush signs off on the surveillance program without Justice Department support. But Ayres persuades Comey to delay his resignation; in Comey’s words, Ayres “asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me.” Instead of resigning on March 12, Bush meets separately with Comey and Mueller, and promises to make changes in the program (see March 12-Mid-2004). Those changes have never been disclosed, though some changes are later found to be the creation of a secret review court to oversee the surveillance court, and the clarification of what exactly constitutes “probable cause” for surveillance. Comey will testify,…“Director Mueller came to me and said that, ‘The president told me that the Department of Justice should get this where it wants to be—to do what the department thinks is right.’ And I took that mandate and set about to do that, and I accomplished that.” [Newsweek, 1/9/2006; National Public Radio, 5/15/2007; New York Times, 5/15/2007; Washington Post, 5/16/2007; PBS, 5/16/2007; Associated Press, 6/7/2007] Goldsmith recalls his surprise when Congress later approves the program and brings it somewhat under the supervision of the FISA court. “I was sure the government was going to melt down,” Goldsmith says in 2007. “No one anticipated they were going to reverse themselves.” [New York Times Magazine, 9/9/2007]Did Gonzales Break the Law? - It is also possible that Gonzales and Card may have broken the law in discussing classified information in a public venue. “Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace,” says law professor Neal Katyal, a national security adviser under Bill Clinton. “The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power. And the NSA program is particularly sensitive. One government official familiar with the program notes, “Since it’s that program, it may involve cryptographic information,” some of the most highly protected information in the intelligence community. The law governing disclosure of classified information is quite strict, and numerous government and military officials have been investigated for potential violations in the past. “It’s the one you worry about,” says the government official. Katyal says that if Gonzales did indeed break the law, the Justice Department cannot run any investigation into the matter: “The fact that you have a potential case against the Attorney General himself calls for the most scrupulous and independent of investigations.” Many others are dismayed and confused by the contradictions between the absolute secrecy surrounding the program, and Gonzales’s and Card’s willingness to openly discuss it in such an insecure location, and in front of witnesses not cleared to hear details about the program—including Ashcroft’s wife, who is present in the room while the officials seek her husband’s signature. Former NSA general counsel Elizabeth Parker says not enough is known about the meeting to be sure whether or not the law was broken. “Obviously things can be discussed in ways that don’t divulge highly classified information,” she says. “The real issue is what is it about this program that is so classified that can’t allow it to be discussed in a Congressional setting, even a closed Congressional hearing. In order to have confidence in what this program is all about, one needs to understand better what the approach is and how it affects the rights of American citizens.” 'Horrible' Judgment - John Martin, who oversaw Justice’s counterintelligence division for 26 years, calls Gonzales’s and Card’s attempt to override Comey’s authority as acting attorney general as more than just “bad judgment.” Martin calls their judgement “horrible…they both knew or should have known that the Attorney General while he was so incapacitated had delegated his power to his deputy Jim Comey. Comey’s actions were heroic under the circumstances.” [Time, 5/17/2007]Snow Dismisses Concerns - In May 2007, after Comey’s testimony to the Senate hits the media, White House press secretary Tony Snow dismisses any concerns about the inappropriateness of Gonzales’s and Card’s pressuring of Ashcroft in his hospital room, and skips over the fact that Comey, not Ashcroft, had the final authority of the Attorney General at the time. “Because he had an appendectomy, his brain didn’t work?” Snow will say of Ashcroft. “Jim Comey can talk about whatever reservations he may have had. But the fact is that there were strong protections in there, this program has saved lives and it’s vital for national security and furthermore has been reformed in a bipartisan way.” Judiciary Committee member Charles Schumer (D-NY) has a different take on the incident: “What happened in that hospital room crystallized Mr. Gonzales’ view about the rule of law: that he holds it in minimum low regard.” [Associated Press, 6/7/2007] Senate Democrats are preparing to introduce a resolution of no-confidence against Gonzales. [Time, 5/17/2007]

The head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will learn that it clarifies the OLC’s advice on classified foreign intelligence activities. Goldsmith sends another classified memo on the same topic to Deputy Attorney General James Comey the next day, a followup memo to Comey three days later, and a followup to Gonzales the day after that. [American Civil Liberties Union [PDF], 1/28/2009 ]

After senior Justice Department officials object to the possible illegality of the National Security Agency’s secret domestic surveillance program, and refuse to sign off on its continued use, the program is suspended for several months while Justice Department officials conduct a secret audit of the program. Attorney General John Ashcroft will recertify the program at the end of the month (see Late March, 2004). The suspension is prompted by acting Attorney General James Comey’s refusal to approve the program when it comes up for its regular 45-day review, and a subsequent late-night hospital visit by White House officials Andrew Card and Alberto Gonzales to the hospital room of Attorney General John Ashcroft, where they unsuccessfully attempt to pressure Ashcroft, recuperating from surgery, to overrule Comey and approve the program (see March 10-12, 2004). Bush himself has personally reauthorized the program over 30 times since its inception after the 9/11 attacks (see Early 2002), and reauthorizes it himself after Comey and Ashcroft refuse to give it their approval. This reauthorization prompts a threat of mass resignations by Justice Department officials unless the program is brought under increased oversight. Bush will allow the Justice Department to recommend changes to the program, though those changes have never been made public. The Justice Department audits a selection of cases to see how the NSA is running the program, scrutinizing how NSA officials determine that they have probable cause to wiretap US citizens’ phones and e-mail accounts. The results of that audit have not been made public. When the program was first authorized by Bush’s executive order in early 2002, it was so secret that then-Deputy Attorney General Larry Thompson, who was active in most of the government’s most highly classified counterterrorism operations, was not given access to the program. That decision, among other elements of the program, led many Justice Department officials to worry that the program was operating outside of the Constitution and without proper oversight. Comey, Thompson’s successor, was eventually given authorization to take part in the program and to review intelligence data produced by it. Justice Department officials say that Comey takes part in overseeing the reforms that are put into place during the current audit. However, those reforms do not restrict the NSA’s authority to independently choose its eavesdropping targets, and NSA shift supervisors have the authority to decide for themselves whether there is enough evidence against a US citizen to warrant a secret wiretap. No one at the Justice Department or in the White House needs to be consulted before a wiretap is put into place. [New York Times, 12/31/2005]

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, advises White House counsel Alberto Gonzales in a classified memo that several “classes” of people are not given “protected” status if captured as hostiles in Iraq. Those people include: US citizens, citizens of a state not bound by the Geneva Conventions, citizens of a “belligerent State,” and members of al-Qaeda who are not Iraqi citizens or permanent Iraqi residents. The memo will be made public on January 9, 2009. [US Department of Justice, 3/18/2004 ; American Civil Liberties Union [PDF], 1/28/2009 ]

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to a number of general counsels: the State Department’s William Howard Taft IV, the Defense Department’s William Haynes, the White House’s chief counsel for national security John Bellinger, the CIA’s Scott Muller, and the White House’s Alberto Gonzales. The memo is a draft opinion that concludes the US government can withdraw “protected persons” (a classification of the Geneva Conventions) who are illegal aliens from Iraq to other countries to facilitate interrogation—in other words, the US can subject them to rendition. Goldsmith says the US can also rendition so-called “protective persons” who have not been accused of a crime and who are not illegal aliens in Iraq, as long as the custody is for a brief period. [US Department of Justice, 3/19/2004 ; Cross, 2005; American Civil Liberties Union [PDF], 1/28/2009 ] The memo correlates with another Justice Department memo rejecting “protected person” status for some who are detained by US forces in Iraq (see March 18, 2004).

Deputy Attorney General James Comey sends a classified memo to Attorney General John Ashcroft. The contents of the memo are kept secret, but the American Civil Liberties Union (ACLU) will later learn that it is a briefing and summary of the Office of Legal Counsel (OLC)‘s preliminary conclusions regarding the Terrorist Surveillance Program (see March 2002). [American Civil Liberties Union [PDF], 1/28/2009 ]

Attorney General John Ashcroft recertifies the NSA’s warrantless wiretapping program as being within the law, three weeks after he and his deputy, James Comey, refused to certify it. The program had come under question in early 2004, when Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, wrote to Ashcroft and Comey expressing his doubts about the program’s legality (see September 9, 2007). For those three weeks, the program operated without Justice Department approval; President Bush personally recertified it himself, though it was suspended and subjected to an internal review (see March 12-Mid-2004). Ashcroft had previously refused to recertify the program while recuperating from surgery, despite pressure from White House officials Alberto Gonzales and Andrew Card (see March 10-12, 2004). Ashcroft, Comey, Goldsmith, and other Justice Department officials had even threatened to resign en masse if Bush recertified the program without their department’s support; Bush promised to revamp the program to address Ashcroft and Comey’s objections to the program, though what those changes are remains unclear. [Boston Globe, 5/16/2007; Associated Press, 6/7/2007]

The Supreme Court convenes to hear arguments in Vice President Cheney’s appeal of a judicial order to reveal information about his secret energy task force (see December 15, 2003). Justice Antonin Scalia has recently returned from a duck hunting trip with Cheney; though critics demand he recuse himself to avoid charges of conflict of interest, Scalia refuses. The plaintiffs, conservative watchdog organization Judicial Watch and progressive environmental group Sierra Club, are heavily represented in the courtroom, and friends and supporters jam the courthouse steps. Solicitor General Theodore Olson, arguing for the government, posits that the White House enjoys a “constitutional immunity” that protects the executive branch from all requests for information unless the president himself is under criminal investigation. If the Federal Advisory Committee Act (FACA) forces the president to make public any advice he or other White House officials have received, or even to make that information available to a judge (see August 2, 2002), FACA itself is unconstitutional, Olsen argues. “This is a case about separation of powers,” he says. Neither Congress nor the judiciary can force the president or his officials to disclose information to a judge, not even on a very limited basis to determine whether a lawsuit can proceed—a process called discovery. “We are submitting that the discovery itself violates the Constitution,” Olson asserts. Justice Ruth Bader Ginsburg is taken aback by the sweep of his claim, which, if accepted, would gut the ability of the courts to review any civil lawsuit involving the executive branch. “All discovery?” she asks. “Yes,” Olson replies. Throughout the questioning, most of the justices seem sympathetic to the administration’s general constitutional concerns, but uncomfortable with siding entirely with the White House’s sweeping claims of inherent legal immunity from scrutiny. [Savage, 2007, pp. 166-167] The oral arguments will continue for weeks (see April 27, 2004).

Deputy Solicitor General Paul Clement appears before the Supreme Court to argue for the administration in Hamdi v. Rumsfeld (see June 28, 2004). Clement argues that the Court has no role in the White House’s decision to hold suspected terrorists designated as “enemy combatants” without trial or charge. During oral arguments, several of the justices ask Clement if the Bush administration considers itself bound by the Convention against Torture (see October 21, 1994). Clement replies, “The United States is signatory to conventions that prohibit torture and that sort of thing, and the United States is going to honor its treaty obligations.” He continues: “I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or do something along those lines.” That evening, CBS’s 60 Minutes II airs the first photos of tortured prisoners at Abu Ghraib (see April 28, 2004). [Oral Arguments, Hamdi v. Rumsfeld, 4/28/2004 ; Savage, 2007, pp. 188-189]

Rene Lerner, a deputy assistant attorney general in the Office of Legal Counsel (OLC), and Justice Department lawyer Adrien Silas send a memo to Assistant Attorney General William Moschella. The memo will remain classified, but the American Civil Liberties Union (ACLU) will learn that it pertains to the so-called “McCain Amendment,” later known as the Detainee Treatment Act (see December 15, 2005). President Bush will sign the bill into law, but will include a signing statement that states the administration will not follow the law because it impinges on the president’s constitutional authority to conduct military operations (see December 30, 2005). It is unclear whether Bush’s signing statement is influenced by the memo. [ProPublica, 4/16/2009]

Attorney General John Ashcroft again invokes the “state secrets” privilege (see March 9, 1953), forbidding former FBI translator Sibel Edmonds from testifying in a case brought by hundreds of families of September 11 victims (see October 18, 2002). [New York Times, 5/20/2004] Four weeks earlier, on April 26, the Justice Department had obtained a temporary court order preventing her from testifying before the court. [Independent, 4/2/2004; Government Executive, 4/30/2004] The families, represented by the law firm Motley-Rice, allege that a number of banks and two members of the Saudi royal family provided financial support to al-Qaeda. [New York Times, 5/20/2004] Ashcroft’s order retroactively classifies information it provided Senators Chuck Grassley and Patrick Leahy (see June 17, 2002) concerning former FBI translator Sibel Edmonds and her allegations. Among the documents to be “reclassified” are the follow-up letters sent by Grassley and Leahy to the FBI which they posted on their website. Their staff members are prohibited from discussing the information, even though it is now public knowledge. The order bars Edmonds from answering even simple questions like, “When and where were you born?” “What languages do you speak?” and “Where did you go to school?” [New York Times, 5/20/2004; Boston Globe, 7/5/2004; Asia Times, 8/6/2004; Vanity Fair, 9/2005] In response to the announcement, Grassley says: “I think it’s ludicrous, because I understand that almost all of this information is in the public domain and has been very widely available. This classification is very serious, because it seems like the FBI would be attempting to put a gag order on Congress.” [New Republic, 6/7/2004]

David Ottaway. [Source: AAAS.org]According to the Oregon branch of the Islamic charitable organization the Al-Haramain Islamic Foundation, Washington Post reporter David Ottaway receives a classified document that is evidence of illegal surveillance by the National Security Agency. The document shows that the NSA illegally intercepted telephone conversations and e-mails between Al Haramain officials in Oregon and Washington, DC. The document, dated May 24, 2004 and marked “Top Secret,” is accidentally provided to Al Haramain by Treasury Department officials that same month; Al Haramain quickly turns the document over to Ottoway, who is researching Islamic groups and individuals labeled as terrorists by the US government and are attempting to prove their innocence. Instead of reporting on the document, Ottaway will return it to the FBI when that organization demands it back in November 2004. In February 2006, Al Haramain will sue the Bush administration for illegally spying on it (see February 28, 2006) as part of its warrantless wiretapping program (see After September 11, 2001 and December 15, 2005). The Treasury Department has been investigating the charitable organization for possible ties to terrorism, and designated the group as a terrorist organization. The FBI will approach the organization and then Ottaway himself, demanding that all copies of the document be returned and threatening them with prosecution if the contents are revealed. Ottaway will consult with Post editors and lawyers, who will conclude, according to Ottaway, “that it was not relevant to what I was working on at the time.” Post executive editor Leonard Downie, Jr., will defend the decision, saying, “At the time we had this document, it was before we had any knowledge of the eavesdropping program. Without that knowledge, the document provided no useful information. At the time, all we knew was that this document was not relevant to David’s reporting.” [Washington Post, 3/3/2006]

Jack Goldsmith, once considered a rising star in the Bush administration (see October 6, 2003), resigns under fire from his position as chief of the Justice Department’s Office of Legal Counsel (OLC). In his nine-month tenure, Goldsmith fought against the administration’s warrantless wiretapping program, its advocacy of torture, and its policy of extrajudicial detention and trial for terror suspects. Goldsmith will not discuss his objections to the administration’s policy initiatives until September 2007, when he will give interviews to a variety of media sources in anticipation of the publication of his book, The Terror Presidency. Goldsmith led a small, in-house revolt of administration lawyers against what they considered to be the constitutional excesses of the legal policies advocated by the administration in its war on terrorism. “I was disgusted with the whole process and fed up and exhausted,” he will recall. Goldsmith chooses to remain quiet about his resignation, and as a result, his silence will be widely misinterpreted by media, legal, and administration observers. Some even feel that Goldsmith should be investigated for his supposed role in drafting the torture memos (see January 9, 2002, August 1, 2002, and December 2003-June 2004) that he had actually opposed. “It was a nightmare,” Goldsmith will recall. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007] Goldsmith will not leave until the end of July, and will take a position with the Harvard University Law School. Unlike many other Justice Department officials, he will not be offered a federal judgeship, having crossed swords with White House lawyers too many times. [Savage, 2007, pp. 191]

Deputy Attorney General James Comey calls US Attorney Carol Lam over her office’s “underperformance” with regards to firearms prosecutions under the Project Safe Neighborhoods (PSN) initiative (see March 10, 2004). Comey tells Lam that PSN is a high priority for the Justice Department, and “something incredibly important to the attorney general and me, and to the president.” He tells her that he wants her “to really focus on this and make sure you are not missing something.” He acknowledges that different districts handle gun prosecutions differently, depending on the individual state’s gun laws, and notes that he is not calling “just for the sake of getting your [PSN] numbers up.” When asked (see September 29, 2008) if he thought she understood that she needed to get her PSN numbers higher, Comey will say, “I was keen not to convey that directly.” He understands that California has quite restrictive state gun laws, and state prosecutors handle many cases that federal law enforcement officials such as US Attorneys would handle in other states. However, Comey does expect her numbers to increase because he called her about the issue. He does not tell her that a failure to improve her PSN numbers would warrant her termination. Spencer Pryor, a counsel in Comey’s office and a participant in the telephone conversation between Comey and Lam, sends a memo to Kyle Sampson, a lawyer on the staff of Attorney General Alberto Gonzales, summarizing the results of the calls to Lam and other “underperforming” US Attorneys. Pryor notes that Lam acknowledged Comey’s concerns, but stated that her office had received no PSN resources. Pryor notes that Lam is incorrect, that she has received another prosecutor for PSN cases. Lam also says during the call that her district’s PSN case screening process is “broken” and a new system would help boost prosecution numbers. Pryor also notes that state prosecutors handle many firearms cases because of California’s strict gun laws. Pryor concludes that Lam needs more resources to adequately prosecute PSN cases. Lam sends an email to her staff detailing the conversation with Comey, tells them that their district ranks 93rd out of 94 US Attorneys in gun prosecutions (only 20 in the previous year), and that she told Comey that while their numbers will increase in the coming months, he should not expect a “meteoric rise.” She cites California’s gun laws and the “immense” caseload of her office as reasons why their numbers are so low. She tells her staff that she knows Comey wants the PSN numbers to rise. She later says she works with local law enforcement agencies to have them refer any firearms cases to her office where the federal sentence would exceed the state sentence by 24 months. Moreover, she will say, in 2005 and 2006 her office will make concerted efforts to prosecute more firearms cases. However, she will say, those measures are “a solution in search of a problem,” and her office will get few referrals. [US House of Representatives, Committee of the Judiciary, 4/13/2007 ; US Department of Justice, Office of the Inspector General, 9/29/2008]

The White House sends a classified memo to the CIA. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) and the Washington Post will later learn that it approves “harsh tactics” by CIA interrogators in questioning suspected terrorists. The memo was requested by CIA Director George Tenet, who asked for legal cover for the torture and harsh interrogation methods employed by CIA interrogators in the aftermath of the Abu Ghraib scandal. Tenet had already asked for, and received, a similar legal authorization a year earlier (see June 1, 2003). [Washington Post, 10/15/2008; American Civil Liberties Union [PDF], 1/28/2009 ]

Margaret Chiara, the US Attorney for the Western District of Michigan (see November 2, 2001), undergoes her first Evaluation and Review Staff (EARS) performance evaluation, as mandated by the Justice Department. The evaluation is generally positive, finding that Chiara is “a well regarded, hard-working, and capable leader who had the respect and confidence of the judiciary, the agencies, and USAO [US Attorney’s Office] personnel.” However, the evaluation finds “discontent within the criminal division” in Chiara’s office, based on the perceptions of some of her Assistant US Attorneys that some people are being rewarded for hard work more than others. A later draft report notes that “[m]any AUSAs reported to evaluators [concerns about] the number and size of awards given to other AUSAs during the last 12 months. This information was found by evaluators to be generally inaccurate.” [US Department of Justice, Office of the Inspector General, 9/29/2008] A subsequent EARS report, issued in June 2005, praises Chiara and her office for “effectively” implementing the department’s national priorities, and notes how effectively the office has worked in “dismantling and disrupt[ing] drug organizations” in Chiara’s district. It also notes a significant increase in firearms cases being referred to state and local authorities. Chiara has a “firm grasp on [the district’s] unique crime problems and issues,” the report notes, singling out her deft handling of “violent crimes in Indian Country.” And it praises the “management principles applied in your district,” resulting in “high quality work from your personnel.” [US House of Representatives, Committee on the Judiciary, 5/21/2007]

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to Attorney General John Ashcroft. The contents of the memo remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the ramifications of a recent Supreme Court decision on gathering foreign intelligence. Presumably, Goldsmith is writing about the Hamdi decision, in which the Court ruled that enemy combatants and detainees have the right to due process in the US justice system (see June 28, 2004), but this is by no means certain. [American Civil Liberties Union [PDF], 1/28/2009 ]

US Representative Darrell Issa (R-CA) and 13 other representatives sign a letter to Attorney General John Ashcroft protesting the Justice Department’s policy towards prosecuting “alien smugglers,” or “coyotes,” who bring illegal immigrants across the US-Mexican border. Issa, who wrote the letter, says that the DOJ should adopt a “zero-tolerance” policy towards “alien smuggling” and should prosecute everyone accused of such a crime. Issa refers to decisions by US Attorney Carol Lam of the District of Southern California (see November 8, 2002) not to prosecute persons charged with the crime of “alien smuggling,” and references the case of Antonio Amparo-Lopez as an example of a “missed opportunity” to prosecute such an alleged criminal (see February 2, 2004). Issa writes: “It is unfortunate and unacceptable that anyone in the Department of Justice would deem alien smuggling, on any level or by any person, too low of a priority to warrant prosecution in a timely fashion. In our view, a lack of available resources for prosecution is not a valid reason for a decision not to prosecute and, in fact, would signify a mismanagement of your department’s priorities.” [US Department of Justice, 3/23/2007 ] Issa represents California’s 49th District, which centers on San Diego and is part of Lam’s federal district. [Healthy City, 8/2011 ] Assistant Attorney General William Moschella will send Issa a brief reply defending the Justice Department’s prosecution practices (see (December 30, 2004)). Issa’s spokesperson Frederick Hill will later tell columnist Byron York: “We were stumped in terms of getting information to explain the scope of the problem. We put the word out on the street that we were interested in getting more information about this.” York later writes, “Issa was hoping for a tip—perhaps from someone inside a law-enforcement organization—to give him the information he had been seeking.” [National Review, 3/28/2007]

The American Civil Liberties Union warns that InfraGard, the private organization that cooperates with the FBI in law enforcement and other areas (see 1996-2008), is a potential threat to constitutional freedoms. “There is evidence that InfraGard may be closer to a corporate TIPS program [TIPS is a program proposed by the Bush administration to encourage Americans to spy on one another], turning private-sector corporations—some of which may be in a position to observe the activities of millions of individual customers—into surrogate eyes and ears for the FBI,” the ACLU says in its report, “The Surveillance-Industrial Complex: How the American Government Is Conscripting Businesses and Individuals in the Construction of a Surveillance Society.” [Progressive, 2/7/2008]

The Nuclear Regulatory Commission (NRC) announces that it will no longer inform the public as to which nuclear energy plants have passed, or failed, security tests. The NRC claims the new restrictions are to keep potentially harmful information out of terrorist hands (see Between July 9 and July 16, 2001); critics argue the policy prevents the public from pressuring corporate executives to keep their plants safe (see Late July, 2003). Soon afterward, the NRC will move to withdraw large amounts of unclassified information, previously available to the public, from public view. Agency spokeswoman Sue Gagner will say that the move is to ensure that “information that could be helpful to a terrorist” is not available, but the upshot of both decisions is that only officials employed by the nuclear industry can discuss regulatory and security changes—public citizens and watchdog organizations no longer have the information required to pursue such issues. [Savage, 2007, pp. 103]

The press reports that according to a Justice Department investigation, Senator Richard Shelby (R-AL), then the ranking Republican on the Senate Intelligence Committee, leaked highly classified information to Fox News reporter Carl Cameron regarding al-Qaeda communications in the hours before 9/11 (see June 19, 2002). After Vice President Dick Cheney threatened the then-chairman of the Senate Intelligence Committee, Bob Graham (D-FL—see June 20, 2002), Graham and then-House Intelligence Committee chairman Porter Goss (R-FL) pushed for a Justice Department investigation into the leak. Though the FBI and the US Attorney’s Office conducted a probe, and even empaneled a grand jury, the Justice Department decided not to prosecute anyone, and instead turned Shelby’s name over to the Senate Ethics Committee, which will decline to pursue charges against him. Shelby states that he did not leak any classified information to anyone, and says he has never been informed of any specific allegations. The FBI demanded that 17 senators turn over phone records, appointment calendars, and schedules. One Senate Intelligence Committee staffer told the FBI that Shelby had leaked the information to show the shortcomings of the intelligence community in general and CIA Director George Tenet in particular. Though two senior Justice Department officials, then-Deputy Attorney General Larry Thompson and then-criminal division chief Michael Chertoff, refused to approve subpoenas for journalists, Cameron confirmed to FBI investigators that he was a recipient of Shelby’s leak. He also told investigators that he saw Shelby talking with CNN’s Dana Bash; after Shelby’s discussion with Bash, Cameron divulged the information Shelby had leaked to her, and CNN broadcast the story a half-hour after the conversations. Cameron told FBI agents he was irritated that Shelby had shared the same information with a competitor, and added that he delayed broadcasting the story because he wanted to ensure that he was not compromising intelligence sources and methods. Cameron was never subpoenaed and did not testify under oath. Bash refused to cooperate with the investigation. [Washington Post, 8/5/2004; National Journal, 2/15/2007]

Daniel Levin, the acting head of the Justice Department’s Office of Legal Counsel (OLC), sends a draft memo to Deputy Attorney General James Comey. The memo remains secret, but the American Civil Liberties Union (ACLU) will learn that it details the OLC’s views on a decision to be made by Comey on a classified intelligence collection activity. [ProPublica, 4/16/2009]

Representative Heather Wilson (R-NM) writes a letter to US Attorney David Iglesias complaining about what she considers to be evidence of possible voter fraud in her district. She reports that an unusually large number of mailings from her office to newly registered voters are being returned as undeliverable. She asks Iglesias to “investigate whether these voter registrations were lawful and whether any organizations or groups are intentionally causing false voter registration forms to be filed with the county clerk.” Iglesias will not respond to Wilson’s letter until October 29, 2004, just days before the November elections, and will inform Wilson that he is referring her complaint to the FBI “for their review and possible action. The FBI will determine whether a federal investigation may be warranted.” Wilson will forward Iglesias’s response to her chief of staff with the handwritten comment: “What a waste of time. Nobody home at US Attorney’s Office.” Wilson will later state that she faults Iglesias for not pursuing her complaint in a timely manner. It is unclear whether she is aware of Iglesias’s Election Fraud Task Force, formed in September 2004 (see September 7 - October 6, 2004). The FBI will find that the undeliverable mailings referred to in Wilson’s complaints were returned because of incomplete addresses on voter registration cards (i.e. apartment numbers left out), errors by Wilson’s office in addressing the envelopes, or because the people mailings were sent to, usually college students, had since moved. The FBI will recommend, and the task force will concur, that no further investigation of Wilson’s complaints is warranted. [US Department of Justice, Office of the Inspector General, 9/29/2008] Wilson’s letter is spurred by New Mexico Republicans’ efforts to block ACORN (the Association of Community Organizations for Reform Now) from registering new voters in largely Hispanic and poor areas. The effort is being led by Matt Henderson, an Albuquerque resident and ACORN head organizer; under Henderson’s leadership, ACORN is registering thousands of new voters, whom Republicans in New Mexico and Washington, DC, correctly fear will vote largely Democratic. ACORN and other groups are battling Republican efforts to institute strict voter ID laws, which critics say will hinder poor, minority, and elderly voters from participating in elections. In 2000, the state had gone for Democrat Al Gore by a vanishingly small margin of 366 votes; both parties believe that the 2004 presidential election will be equally close. By August 2004, ACORN and other groups have signed up some 65,000 new voters in Bernalillo County, which encompasses Albuquerque. Sheriff Darren White is the person who allegedly found voter registration errors in some 3,000 forms filed with the Bernalillo County clerk, including forms lacking Social Security numbers, complete addresses, and the like. White, the chairman of the New Mexico Bush-Cheney re-election campaign, who proudly admits to being made chair in order to deliver Bernalillo County for Bush-Cheney, calls those errors evidence of massive and systematic voter fraud. He has already written to Iglesias, on August 5, asking that Iglesias investigate the “suspect” registration forms. Wilson’s letter to Iglesias comes less than two weeks after White’s letter. [Atlas, 2010, pp. 213]

J. William Leonard, the director of the National Archives Information Security Oversight Office, tells a House subcommitte that it is “no secret that the government classifies too much information” (see March 25, 2003). Leonard warns that this culture of overarching secrecy puts everyone at risk. Excessive secrecy makes it difficult for agencies to share information that might help to prevent terrorist attacks, he says, and can “serve as an impediment to sharing information with another agency, or with the public, who have a genuine need-to-know for the information.” [Savage, 2007, pp. 163]

The chief judge for the US District Court for the Northern District of California sends news articles about US Attorney for the Northern District of California Kevin Ryan (see August 2, 2002) to Associate Deputy Attorney General David Margolis. For some time, San Francisco newspapers have reported on turmoil and turnover in Ryan’s office, with several experienced prosecutors leaving, allegedly due to Ryan’s management style. The judge complains to Margolis about Ryan’s leadership style. Margolis discusses the situation with Mary Beth Buchanan, the head of the Executive Office of US Attorneys, and they decide to discuss the issue with Ryan. However, they take no immediate action. [US Department of Justice, Office of the Inspector General, 9/29/2008] Buchanan will later say: “The United States Attorney’s Office for the Northern District of California had a long history of problems. The problems in the office predated Kevin Ryan’s tenure as the United States Attorney. Shortly after Kevin Ryan became the United States Attorney, there were discussions about his management style. I don’t recall exactly when these communications came to the attention of the Executive Office. What I can tell you is that, at some point, these communications escalated, and there were letters that were sent to the deputy attorney general, there were numerous newspaper articles that appeared in the press. And after the escalation of these concerns, I meet [sic] with Kevin Ryan and his first assistant along with David Margolis in an attempt to address some of the management concerns.… I know that Kevin Ryan had a number of significant computer crime and intellectual property cases, so I think that there were certainly good things that were done in Mr. Ryan’s office.” [US House of Representatives, Committee on the Judiciary, 6/15/2007 ]

Leslie Hagen. [Source: MLive (.com)]Rumors begin swirling around the office of US Attorney Margaret Chiara of the Western District of Michigan (see November 2, 2001) that Chiara is having an untoward sexual relationship with a female Assistant US Attorney (AUSA), and as a result that AUSA is being given undue monetary awards, bonuses, and other incentives. These rumors will soon make their way to the Justice Department in Washington. The primary sources of the rumors are Joan Meyer, Chiara’s criminal chief, and her husband Lloyd Meyer, another AUSA. The AUSA in question, who will remain unnamed in a Justice Department investigation of the 2006 US Attorney purge (see December 7, 2006 and September 29, 2008) but is later identified in the press as Leslie Hagen, was hired in October 2002. She and Chiara were friends before the hiring, both having been female prosecutors, and according to Chiara, their friendship deepened once Hagen began working in the office. Both will deny having any sort of romantic or sexual liaison. Hagen is assigned to work with Joan and Lloyd Meyer in the criminal division. When she joined the staff, Hagen lived in the eastern part of the state, and had a long drive to and from work. Occasionally she stayed overnight in a basement apartment in Chiara’s house in Lansing to cut down on the commute. She obtained her own apartment in 2003, but sometimes stayed at Chiara’s house to take care of Chiara’s dog when Chiara was out of town. Chiara will confirm that Hagen is the only one of her employees to ever stay overnight at her home. Both Chiara and Hagen will confirm that they occasionally traveled together on business relating to Chiara’s position on the Native American Issues Subcommittee of the Attorney General’s Advisory Committee (AGAC). They took a vacation day during one such trip in Seattle, and Hagen has stayed at Chiara’s house in South Carolina on a few occasions. In mid-July 2004, Chiara was given her first EARS (Evaluation and Review Staff) performance evaluation, a mandated Justice Department review (see July 12-16, 2004). A First Assistant US Attorney (FAUSA) from another office headed the evaluation team. He and his team extensively interviewed almost all of Chiara’s staff. The review was generally positive, but the FAUSA will later recall hearing a vague rumor about a liaison between Chiara and an AUSA. He did not report it on his evaluation, but he may, he will later recall, have told the EARS staff in the Executive Office of US Attorneys (EOUSA) in Washington about it. Lloyd Meyer will admit to telling the rumor to the EARS team, and he will state that many AUSAs had told the EARS team the same rumor. The EARS team heard several complaints about inequitable distribution of awards and incentives, some centering on Hagen. The EARS team leader reviewed the awards and found them justified. Chiara’s FAUSA, Phillip Green, will tell Justice Department investigators that the rumors about Chiara and Hagen begin to permeate the office in the fall of 2004, and says Joan and Lloyd Meyer are primarily responsible for them. According to Green, Lloyd Meyer “went ballistic” after nominating himself for a EOUSA award and losing it—by an EOUSA decision—to Hagen. Green is certain Meyer began spreading the rumors after losing the award and telling staff members that Chiara “pulled strings” at EOUSA to make sure Hagen received the award. Hagen will say it is about this time that Meyer begins a “campaign” to drive her out of the office. Joan Meyer, Green will say, is going along with her husband, who is the primary source of the rumors, though she believes the rumors as well. When the Justice Department investigators interview Joan Meyer, she will admit to having no direct knowledge of any affair, but will cite the fact that the two drove to and from work together and she had “been noticing situations,” “putting two and two together,” “talking to people,” and the like. Joan Meyer complains to Green that Hagen had won a “huge award” of some $20,000, a complaint Green will say is entirely false. Chiara changed the bonus award process in the spring to give bonuses only to employees who received “outstanding” performance evaluations for the previous year, shutting some staff members out of the bonus process and fueling the perception among some that the bonuses were being awarded unfairly. An allegation in December 2004 that Chiara unfairly gave Hagen a time-off award fuels the rumors in the office even more; the award comes after Hagen completes an arduous trial, and her colleagues in the trial also receive time-off awards. Other rumors, such as that Chiara unfairly gives Hagen the “lion’s share” of bonus money, prove false upon Justice Department review of the office financial records. Moreover, Green, not Chiara, makes the bonus determinations. Jane Meyer confronts Chiara over the rumors of her “relationship” with Hagen in early 2005, shortly after Chiara elevates her to criminal chief. Chiara answers that she has no business asking her such questions, that it would be impossible for her to properly supervise Hagen if they were in a relationship, and the question is irrelevant to the business of the office. Chiara will say that by the middle of 2005, the Meyers have created a “reign of terror” in the office to the point where the office is a “disaster.” Lloyd Meyer is detailed to a position in the Justice Department’s Office of Legal Policy in June 2005, blaming Chiara for creating an “intolerable” climate in the office (see September 2005). In October 2005, Hagen is detailed to a position in EOUSA. The false rumors and allegations will become part of the basis for Chiara’s firing in December 2006. [Los Angeles Times, 7/29/2008; US Department of Justice, Office of the Inspector General, 9/29/2008]

The US Attorney’s Office (USAO) of New Mexico, headed by David Iglesias (see October 18, 2001), announces the formation of a state and federal task force to address the issue of voter fraud in the state. Iglesias forms the task force in part because of complaints by Republican lawmakers and state party officials about what they term “rampant” voter fraud in the state that is, they say, affecting elections (see August 17, 2004), and as a response to Attorney General John Ashcroft’s stated goal to ramp up voter fraud investigations throughout the nation. “It appears that mischief is afoot and questions are lurking in the shadows,” Iglesias tells local reporters. 'Suspicious' Registration Forms - According to Nancy Scott-Finan of the Justice Department’s Office of Legal Affairs, Iglesias opens the task force after hearing from Bernalillo County Clerk Mary Herrara, a Democrat, who wanted to discuss some 3,000 “suspicious resignations” with him. He has also received a letter from Bernalillo County Sheriff Darren White, a Republican, about “thousands” of “questionable” voter registrations—the same 3,000 “suspect” forms—turned in by voter-outreach groups working primarily on behalf of Democrats. (Iglesias was invited to take part in what New Mexico Republican Party Chairman Allen Weh called “the [New Mexico Republican P]arty’s voter fraud working group” a month ago, but declined. Weh forwarded the invitation to a number of prominent New Mexico Republicans, including Senator Pete Domenici, Representative Heather Wilson—see August 17, 2004—and others. Domenici’s chief of staff Steve Bell called the issue a “critical matter.” Iglesias did not join the group, and no evidence exists that the group was actually formed.) Iglesias wants to avoid the perception of partisanship in his task force, so aside from Republicans on his task force, he asks Secretary of State Rebecca Vigil-Giron (D-NM) to join; she assigns a member of her office to serve in the organization. Officials from the New Mexico Department of Public Safety (the state’s law enforcement agency), the US Veteran’s Administration Inspector General’s Office, the FBI, and the Justice Department’s Public Integrity Section (PIN) also agree to participate. Two days after the announcement, Iglesias announces that a voter fraud hotline for the task force has been activated, and says that all allegations of fraud will be thoroughly investigated. Rumaldo Armijo, Iglesias’s executive assistant, and two other Assistant US Attorneys are assigned to the task force. New Mexico Republicans Critical of Task Force - However, some New Mexico Republicans complain that the task force’s bipartisanship renders it useless. Mickey Barnett, a powerful state Republican, writes an email to Iglesias informing him that “[m]ost of us think a task force is a joke and unlikely to make any citizen believe our elections and voter registrations are honest.” New Mexico attorney Patrick Rogers, another prominent state Republican, says of the State Department representative that he has “includ[ed] the target on the task force.” White, the co-chair of the Bush-Cheney re-election campaign in New Mexico who will later tell reporters he was brought on by the Bush-Cheney campaign in order to help win Bernalillo County, later says he would have preferred the USAO to investigate and prosecute cases without the involvement of state agencies, and he believed Iglesias’s concerns about bipartisanship to be misguided. Vigil-Giron will also question the task force, saying: “This is just an attempt to let people know that Big Brother is watching. It may well be aimed at trying to keep people away from the polls.” Iglesias meets with the task force members several times before the November 2 elections, and reminds them that Justice Department policy forbids his office from indicting people on voter fraud charges before upcoming elections, in order to avoid the perception that the indictments are being filed to impact the elections. Almost All Complaints Minor, No Criminal Cases Developed - Almost all of the complaints received by the task force are quite minor—complaints of yard signs being stolen, harassing phone calls, and non-criminal registration issues. These complaints are forwarded to local election officials. Several more serious complaints, including the complaints from Republican lawmakers and state officials, are forwarded to either the FBI or the Department of Public Safety. Iglesias will say that when he began the task force, he thought it would develop cases worth prosecuting, but after months of work, he found that it was unable to develop a single criminal case. The task force will stop meeting after the November elections and will conclude its efforts in January 2005, but will not officially disband until 2006, after the FBI completes the last of its investigations. The Justice Department will recognize Iglesias’s task force as an example to other offices as to how voter fraud investigations should be handled, and Iglesias will give an address to a department-sponsored symposium on voter integrity (see October 2005). [Washington Post, 9/20/2004; US House of Representatives, Committee on the Judiciary, 4/13/2007 ; US Department of Justice, Office of the Inspector General, 9/29/2008; Atlas, 2010, pp. 213-216] On September 30, Senator Jeff Bingaman (D-NM) calls the Justice Department to ask about Iglesias’s task force. He speaks with Assistant Attorney General William Moschella. He says he is concerned about voter intimidation, and says he has heard no allegations of widespread voter fraud. He also says the local FBI told him the task force “was on thin ice,” apparently meaning that it is not finding anything of consequence. [US House of Representatives, Committee on the Judiciary, 4/13/2007 ]Iglesias Refused 'Show Trials,' Says Reporter - Investigative reporter Greg Palast will say of Iglesias’s voter fraud task force: “That’s where Iglesias drew the line in the sand. He said a press conference is one thing, which he probably shouldn’t have done, but literally handcuffing innocent voters for show trials—and then, of course, then you drop the case later—that is one thing he absolutely was not going to do.” [Democracy Now!, 5/14/2007]

Alvin Hellerstein. [Source: Associated Press]In 2003, after reports began to surface that some detainees in US custody had been abused, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act request seeking records about the treatment of all detainees caught since 9/11 and held in US custody overseas. The ACLU eventually filed a lawsuit to get the records, and on September 15, 2004, judge Alvin Hellerstein orders the CIA and other government agencies to “produce or identify” all relevant documents by October 15, 2004. [FindLaw, 12/14/2007] Hellerstein also rules that classified documents must be identified in a written log and the log must be submitted to him for review. In December 2004, the CIA and other agencies make public a huge amount of information but fail to inform the judge about the videotapes and other classified information (see December 21, 2004). Since that time, the case remains delayed with stays, extensions, and appeals. In December 2005, the CIA will destroy videotapes of the interrogations of at least two high-ranking al-Qaeda detainees (see November 2005). After the destruction of the videotapes is publicly revealed in December 2007, the New York Times will comment on the ACLU case, “Some legal experts [say] that the CIA would have great difficulty defending what seemed to be a decision not to identify the tapes to the judge, and the subsequent decision to destroy the tapes.” [New York Times, 12/13/2007] Legal analyst John Dean will later comment, “It is difficult to see why the CIA is, in fact, not in contempt, given the nature of the [ACLU] request and the judge’s order.” He will suggest that the case may represent the best chance to find out why and how the CIA destroyed the videotapes. [FindLaw, 12/14/2007]

US Attorney David Iglesias of New Mexico arranges for lawyer Patrick Rogers, a prominent Republican in the state, to meet with an FBI supervisory special agent assigned to work with Iglesias’s voter fraud task force (see September 7 - October 6, 2004). Citation of 'Fraudulent' Registration - Rogers complains that large number of voter registration forms in the state are fraudulent and must be investigated. He cites the case of 13-year-old Kevin Stout, who received a voter registration card in the mail and apparently completed it. Police soon discovered that the card was the result of a forged voter registration form apparently filled out by Christine Gonzales, a former canvasser for the Association of Community Organizations for Reform Now (ACORN) who was being paid on a per-registration basis; that organization had identified Gonzales three months earlier, fired her, and reported her to the authorities. (Stout’s father is Republican activist Glen Stout, who contacted New Mexico Republicans before contacting law enforcement.) A federal judge refused Republican efforts to change the state registration laws in response to the ACORN issue, and as a result hundreds of presumably Democratic voters registered by ACORN retained their registrations. New Mexico Republicans are furious. Citing the Stout case, state Representative Joe Thompson (R-NM), who was one of the Republicans contacted by Glen Stout, displays Kevin Stout’s registration form to reporters and proclaims, “We have proof” of massive and systematic voter fraud in New Mexico. He announces a lawsuit he and Glen Stout will file against New Mexico’s Democratic Secretary of State, Rebecca Vigil-Giron. Rogers brings the Stout issue to Iglesias’s attention. Rogers’s colleague, lawyer and Republican activist Mickey Barnett, will later say that he and other Republicans hired a private investigator to identify and locate Gonzales, but the private investigator failed to find her. Republicans Demand More Information on Voters before Elections - Four days later, Rogers tells Iglesias and Rumaldo Armijo, Iglesias’s executive assistant, in an email that because New Mexico Democrats are casting doubt on the validity of his voter-fraud claims, he wants to “dig up all past info” and asks if there is “any easy way to access the public info related to voter fraud from the [US Attorney’s Office] (public) files? Asap? Before Nov 2?” Rogers is referring to the date of the upcoming state and federal elections. (Barnett also sends emails demanding that Iglesias investigate the canvasser, whose identity he does not know.) Iglesias promises to look into Rogers’s request and “let you know what is publicly available.” Iglesias soon finds a case prosecuted in the early 1990s and provides Rogers with the public information about that case. No Prosecutable Cases; Republicans Outraged - The FBI will later identify and interview Gonzales. Both Iglesias’s office and the Justice Department will find that there is insufficient evidence of criminal behavior in the matter to warrant her prosecution. Iglesias will later say that this case is the strongest one to come out of the entire task force’s proceedings, and even it does not meet the standard for criminal prosecution. New Mexico Republicans are frustrated, having intended to use the Gonzales case to further the Thompson/Stout lawsuit. Barnett complains that Iglesias “appoint[ed] a task force to investigate voter fraud instead of bringing charges against suspects.” Matt Henderson, ACORN’s lead organizer for New Mexico, tells reporters that the lawsuit is “no different from what was going on in the civil rights movement of the 1960s. This is about a set of people trying to stop another set of people from voting.” [US Department of Justice, Office of the Inspector General, 9/29/2008; Atlas, 2010, pp. 214-216]Allegations Collapse under Scrutiny - Even before Iglesias begins his investigation, the allegations of voter fraud had begun to unravel. Several voters admitted accidentally filling out two registration forms. A large majority of the 3,000 “suspect” forms, upon examination, actually showed legitimate attempts by citizens to register to vote. On September 7, a district judge dismissed the suit against Vigil-Giron. ACORN member Yolanda Pena told the press of attempts to make false claims of voter fraud, and showed the press a copy of Kevin Stout’s registration card—it appeared to have been filled out by a child, not an ACORN worker, and seemed to have been done as a prank and not as an attempt to fraudulently register a young boy. “Instead of taking responsibility for this boy’s prank,” Pena told reporters, “the Republicans used it to try to ram a lawsuit through the courts that would have made it harder for minority voters to vote.… We are delighted that [the Republicans] lost in court. Their dirty tricks are racist and un-American.” Another ACORN representative tells reporters that he cannot understand why Gonzales’s name is on Kevin Stout’s registration form, as he had already fired Gonzales for altering other canvassers’ cards to falsely claim credit for having voters fill them out. Gonzales could not have helped Stout fill out his card or filled it out on his behalf. Lawsuit in Response - New Mexico Republicans were enraged at the suit’s dismissal and the ACORN press conferences, and attempted to file a criminal suit against Henderson, alleging that he had broken the law by keeping photocopies of submitted registration forms. (In 2000, Henderson and ACORN chapters in New Mexico had indeed kept such photocopies. At the time, that was a legal practice. Since then, the law has been changed and ACORN, like other voter-registration groups, has ceased keeping those forms. Rogers will also insist that Iglesias file felony charges against Gonzales.) New Mexico Republicans will demand that Iglesias aggressively investigate Henderson and ACORN, charging Henderson with “perjury” and “suspect” practices (see September 23 - October 2004). Iglesias will later say of Gonzales, “It appeared that she was just doing it for the money.” [Atlas, 2010, pp. 215-216]'Gin Up Voter Fraud Publicity' - In 2008, Iglesias will tell reporters that even though he found no evidence of voter fraud, he was ordered by the White House to, the reporters will write, “illegally prosecute baseless cases against innocent citizens, just to gin up voter fraud publicity.” Iglesias will say, “We took over 100 complaints” from New Mexico Republicans. “We investigated for almost two years, I didn’t find one prosecutable voter fraud case in the entire state of New Mexico.” Iglesias will blame his refusal to prosecute those cases for his 2006 firing (see December 7, 2006). “They were looking for politicized—for improperly politicized US Attorneys to file bogus voter fraud cases,” he will say. [Huffington Post, 10/28/2008]

New Mexico Republicans hammer US Attorney David Iglesias (see October 18, 2001) with demands to investigate what they perceive to be a blizzard of voter fraud cases. Iglesias has just established an election fraud task force to look into such allegations (see September 7 - October 6, 2004). On September 23, the executive director of the New Mexico Republican Party, Greg Graves, asks Iglesias to investigate the alleged theft of Republican voter registration forms from the office of a voter registration organization. On September 29, prominent New Mexico Republican Patrick Rogers sends an email to Iglesias and over 20 people associated with the New Mexico Republican Party, including staff members for Senator Pete Domenici (R-NM), Representative Heather Wilson (R-NM—see August 17, 2004), and state party chairman Allen Weh. Rogers calls for Republicans on the state and federal levels to use “voter fraud” as what he calls a “wedge issue” to influence the upcoming elections. Rogers writes in part: “I believe the [voter] ID issue should be used (now) at all levels—federal, state legislative races and Heather [Wilson]‘s race.… You are not going to find a better wedge issue.… I’ve got to believe the [voter] ID issue would do Heather more good than another ad talking about how much federal taxpayer money she has put into the (state) education system and social security.… This is the single best wedge issue, ever in NM. We will not have this opportunity again.” Referring to previous complaints he has registered with Iglesias’s office about alleged voter fraud perpetrated by an Association of Community Organizations for Reform Now (ACORN) worker (see September 15-19, 2004), Rogers writes: “Today, we expect to file a new Public Records lawsuit, by 3 Republican legislators, demanding the Bernalillo county clerk locate and produce (before Oct 15) ALL of the registrations signed by the ACORN employee.” On September 24, Weh sends Iglesias and a number of Republican figures an email about voter fraud allegations that says in part: “We are still waiting for US Attorney Iglesisas [sic] to do what his office needs to do to hold people accountable, and have informed him that doing it after the election is too late. I have copied him on this email for his info.” He sends an email to Iglesias that reads in part, “Vote fraud issues are intensifing [sic], and we are looking for you to lead.” On October 21, Graves sends Iglesias a copy of a complaint to the Bernalillo County Clerk asking that the Republican Party be allowed to inspect ACORN voter registration cards allegedly found during a drug raid. Weh continues to send emails to Iglesias about pursuing voter fraud allegations throughout the month of October, reminding him in one email, “The game clock is running!” [US Department of Justice, Office of the Inspector General, 9/29/2008] In 2008, Iglesias will write that he investigated each allegation, and, with the concurrence of the FBI and the Justice Department, found no prosecutable charges. “Being close doesn’t count in prosecutions where the government has to prove its case beyond a reasonable doubt,” he will write. “The facts did not support what the law required.” However, he will write, it is easy for partisan Republicans to conclude that he is unwilling to aggressively pursue voter fraud cases. It is not long, he will write, before he begins hearing “the rumblings of a whispering campaign among Republican operatives giving voice to their discontent.” [Iglesias and Seay, 5/2008, pp. 87] In 2007, investigative reporter Greg Palast will explain how the process worked. He will say that Republican operatives gave Iglesias and his office “110 names. They wanted them, for example, to arrest some guy named, say, roughly, if I remember, like Juan Gonzalez, and say he voted twice, stealing someone’s ID. Well, in New Mexico there may be two guys named Juan Gonzalez. So Iglesias just thought this was absolute junk, absolute junk stuff, and he wouldn’t do it. So it’s all about trying to create a hysteria about fraudulent voting.” [Democracy Now!, 5/14/2007]

The FBI prepares a detailed 300-page report in response to follow-up questions from the Senate Judiciary Committee about Director Mueller’s earlier testimony on May 20, 2004 (see May 20, 2004) regarding incidents of abuse known by the FBI. However the Justice Department refuses to release the report saying that it must first review it. [Newsweek, 1/6/2005]

US News and World Report journalist Paul Bedard says that many Bush administration officials have shifted their communications from the government’s official, authorized email servers to private, less traceable Web mail servers. A recent report that some 20 million Clinton administration emails would be made public prompted at least one Bush official to tell Bedard, “I don’t want my email made public.” Instead, says another administration official, “It’s Yahoo!, baby,” referring to the Web provider Yahoo! and its free email service. [US News and World Report, 10/10/2004]

The CIA says in a court filing that it cannot confirm or deny the existence of documents being sought after by the American Civil Liberties Union (ACLU) “because to do so would tend to reveal classified information and intelligence sources and methods that are protected from disclosure.” The ACLU sued the government for access to the documents two months earlier. The documents, which a US District Court ordered the government to provide (see August 12, 2004), relate to the treatment of detainees in Guantanamo and Afghanistan. [Boston Globe, 12/27/2004]

The New York Times agrees to a White House request to withhold publication of a potential “bombshell” story: an in-depth article revealing an enormous, and possibly illegal, warrantless wiretapping program executed by the NSA at President Bush’s behest after the 9/11 attacks. The Times will publish the story almost a year later (see December 15, 2005). In August 2006, the Times’s public editor, Byron Calame, will confirm the delay, and note that he has been “increasingly intrigued” by the various descriptions of the delay by Times editor Bill Keller (see December 16, 2005) and others. Keller will tell Calame that, contrary to some statements he and others have made, the story was originally scheduled to be published just days before the November 2004 presidential election. “The climactic discussion about whether to publish was right on the eve of the election,” Keller will say, though he will refuse to explain why he makes the final decision to hold the story. However, he will say that at this time he is not sure the story’s sources are reliable enough to warrant its publication before a close election. [New York Times, 8/13/2006]

The Justice Department’s White House liaison, Susan Richmond, sends an email to all of the department’s presidentially appointed officials, including US Attorneys, reassuring them that the newly re-elected President Bush “will not ask for letters of resignation.” Many had requested clarification as to whether they would be asked to remain or resign during Bush’s second term. Richmond reminds the recipients that “each of us serves at the pleasure of the president.” It is around this same time that Justice Department lawyer Kyle Sampson (see 2001-2003) becomes involved in discussions with White House counsel Harriet Miers about firing all 93 US Attorneys (see November 2004). Sampson tells Miers that firing all 93 US Attorneys may not be a good idea, and the US Attorneys have an expectation of serving their statutory four-year terms, which do not begin to expire until the fall of 2005. [US Department of Justice, Office of the Inspector General, 9/29/2008] Notwithstanding the reassurance, Mary Beth Buchanan, the head of the Executive Office for US Attorneys, begins circulating forms for resignation to the US Attorneys. She will later explain, “At the end of the first administration, I was asked to provide United States attorneys with guidance for those who wished to resign at the end of the first administration.” [US House of Representatives, Committee on the Judiciary, 6/15/2007 ]

President Bush names White House counsel and close personal friend Alberto Gonzales to succeed John Ashcroft as the new attorney general. Ashcroft submitted a letter of resignation on November 2. [Bloomberg, 11/10/2004]

Referring to the recent appointment of former White House counsel Alberto Gonzales as US Attorney General (see November 10, 2004), retired chief judge of the Army Court of Appeals Brigadier General James Cullen says, “When you encounter a person who is willing to twist the law… even though for perhaps good reasons, you have to say you’re really undermining the law itself.” [Village Voice, 11/29/2004]

Congress expands the Patriot Act (see October 26, 2001) by approving an intelligence spending bill with a provision that gives the FBI the power to subpoena business documents and transactions from a broad range of businesses and entities—including libraries, travel agencies, and even eBay—without court warrants. This reduces oversight of the FBI and shifts power away from the judiciary. The Patriot Act already allows the FBI to acquire bank records and communications records by issuing a National Security Letter (NSL) affirming that the information it seeks is relevant to an open investigation; the targeted institution is legally “gagged,” unable to inform anyone, especially the subject of the investigation, of the subpoena. The new law expands the use of NSLs by redefining “financial institution” to include insurance companies, real estate agents, the US Postal Service, travel agencies, casinos, pawn shops, car dealers and any other business whose “cash transactions have a high degree of usefulness in criminal, tax or regulatory matters.” The provision is one of the most controversial parts of the so-called “Patriot II” act (see February 7, 2003) that was withdrawn after the public learned of its elements. Like most intelligence spending bills, this one was drafted in secret and passed with little debate or public comment. Law professor Chris Schroeder, a former Justice Department assistant attorney general, says the insertion of the provision shows that “people who want to expand the powers of the FBI didn’t want to stop after Patriot II was leaked. They are going to insert these provisions on a stealth basis. It’s insidious.” James Dempsey of the Center for Democracy and Technology agrees: “On its face, it’s a cryptic and seemingly innocuous amendment. It wasn’t until after it passed both houses that we saw it. The FBI and CIA like to try to graft things like this into intelligence bills.” CIA Director Porter Goss, when he was chairman of the House Intelligence Committee, defended the provision, saying it is necessary to keep pace with terrorists and the changing economy. “This provision brings the definition of ‘financial institution’ up to date with the reality of the financial industry,” Goss told House members. “This provision will allow those tracking terrorists and spies to ‘follow the money’ more effectively and thereby protect the people of the United States more effectively.” Timothy Edgar of the American Civil Liberties Union says the bill goes too far in expanding executive branch powers. “The more that checks and balances against government abuse are eroded, the greater that abuse,” Edgar says. “We’re going to regret these initiatives down the road.” [Wired News, 11/24/2003]

US Attorney John McKay of the Western District of Washington State (see October 24, 2001) is told by Tom McCabe of the Building Industry Association of Washington (BIAW) that the recounts in the disputed gubernatorial race for Washington State between Christine Gregoire (D-WA) and Dino Rossi (R-WA—see November 2-30, 2004) revealed forged signatures on provisional ballots. McKay informs Craig Donsanto, the head of the election crimes branch of the criminal division’s public integrity section in the Justice Department, and asks Donsanto if his office can open a federal investigation if the allegations only involve a state election. Donsanto advises McKay to take no action until election authorities certify the winner and any court cases stemming from the election have run their course. McKay disagrees with Donsanto’s advice, and directs the FBI to open a preliminary inquiry into the allegations. FBI agents interview McCabe, but neither McKay nor the FBI take further action because the election is not yet certified. McKay advises McCabe to provide any evidence he might have of voter fraud to the local prosecutor, because the complaint involves a state race. When the race is certified in Gregoire’s favor on December 30, cases are immediately filed in state court challenging the results. [US Department of Justice, Office of the Inspector General, 9/29/2008] Around this same time, McKay receives a telephone call from Chris Vance, the chair of the Washington Republican Party, asking about the investigation. McKay cites the prohibition against revealing information concerning an ongoing investigation and refuses to answer Vance’s questions (see Late 2004 or Early 2005). McCabe soon decides that McKay is not pursuing the fraud allegations quickly enough and begins pressuring the White House to fire him (see Late 2004 and July 5, 2005). McKay allows Justice Department agents to examine what he will call the “so-called evidence,” and will recall one agent “laugh[ing] out loud” because the evidence was “that flimsy.” He will recall that he could find no framework to follow in pursuing voter fraud cases. “I was looking for a benchmark,” he will say. “The impression I got [from the Justice Department] was that I should make it up as I went along. The preference, at least as it was expressed from the attorney general’s office, was simply to file as many such cases as possible. I wasn’t willing to do that, certainly not in the gubernatorial race.… [W]as there a conspiracy to steal the election? Absolutely not.” [Iglesias and Seay, 5/2008, pp. 134-135]

Daniel Levin, the outgoing chief of the Justice Department’s Office of Legal Counsel (OLC—see Late 2004-Early 2005), sends a memo to Deputy Attorney General James Comey. The memo will remain secret, but the American Civil Liberties Union (ACLU) will learn that it provides legal advice on communications between defense attorneys and detainees in combatant status review tribunals. [ProPublica, 4/16/2009]

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